Muldoon v. Klein , 246 A.D. 764 ( 1935 )

Order denying defendants’ motion to dismiss the complaint for insufficiency reversed on the law and the facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, without prejudice to the commencement of an action at law for money damages. We are of opinion that the allegations of the complaint not only fail to set forth facts showing the existence of a partnership, but that it affirmatively appears therefrom that the plaintiff was nothing more than an employee or agent working on a commission based upon the gross volume of business procured, without any interest in the so-called partnership assets or possible profits. Lazansky, P. J., Young, Hagarty, Davis and Johnston, JJ., concur.