Goldstein v. Kaye , 2 A.D.2d 889 ( 1956 )

In an action against the executor of a deceased partner of a former partnership to recover salary and commissions under a contract of employment and to recover damages for the breach thereof, the executor appeals from an order granting a motion for a discovery and inspection of the books and records of the former partnership. Order reversed, with $10 costs and disbursements, and motion denied. In our opinion appellant as executor of the deceased partner did not have the books and records of the partnership under his control. Upon the death of a partner the right to specific partnership property vests in the surviving partner. (Partnership Law, § 51, subd. 2, par. [d] ; Josephberg v. Cavallero, 262 App. Div. 1; Williams v. Whedon, 109 N. Y. 333; Murdock v. McCutchen, 154 App. Div. 854.) Moreover, books and records not in possession or control of a party are not subject to a discovery and inspection. (Murdock v. McCutchen, supra.) Nolan, P. J., Beldock, Murphy, Ughetta and Hallinan, JJ., concur.