Union Bank & Trust Co. v. Fabiano

BARNARD, P. J. This is an appeal from a summary judgment granted under the provisions of section 437c of the Code of Civil Procedure.

On March 23, 1954, James F. Kelly as executor of the estate of Mary M. Kelly, deceased, filed this action against Lydia Fabiano and Anthony Bonaceorsi, personally and as copartners, two corporations being also named as defendants. The complaint alleged that Fabiano and Bonaceorsi were copartners doing business under the name of “Desert House of Lydia” or “House of Lydia”; that the defendants and each of them became indebted to the decedent in the sum of $18,054.70 for money had and received for her use and benefit; that the whole amount is still due and unpaid; and that demand for payment had been refused. The defendant Bonaceorsi filed an answer admitting that he is a copartner in the business being conducted in the name of “House of Lydia,” and denying each and every other allegation of the complaint. His prayer was that the defendant take nothing by reason of the complaint. Fabiano filed an answer admitting that she was a partner in the business being conducted under the name of “House of Lydia,” and denying each and every other allegation of the complaint. As a separate defense “and by way of plea in abatement” she alleged that on October 28, 1953, she and Mary M. Kelly entered into a written copartnership agreement for the operation of a business known as “Desert House of Lydia”; and that this agreement provided that in the event of any dispute between the partners the matter should be submitted to arbitration before any suit was filed. Her prayer was that the action be abated pending compliance with the arbitration agreement, and that plaintiff take nothing by reason of the complaint.

On July 8, 1954, an order was entered reciting that James F. Kelly had died and substituting The Union Bank and Trust Company, as executor of the estates of Mary M. Kelly and of James F. Kelly, as plaintiff in the action.

On December 24, 1954, the defendants gave notice of a motion for a summary judgment stating that it would be based upon the record in the action and the affidavit of Lydia Fabiano, which was filed therewith. Her affidavit alleged that on October 28,1953, affiant and Mary M. Kelly and Bonaceorsi entered into a written partnership agreement to conduct a business known as “Desert House of Lydia”; that from time to time Mrs. Kelly paid sums of money into the partnership for its use; that affiant and Bonaceorsi conducted the partner[658]ship business up to and after the death of Mrs. Kelly, and the money sued for represents money paid by the decedent to operate the business; that no dispute arose during Mrs. Kelly’s lifetime; and that no action for dissolution of the partnership or an accounting has been filed. A copy of the claimed agreement was attached to the affidavit, which purported to be signed by Mrs. Kelly, Fabiano and Bonaecorsi. .