(dissenting in part). The alleged partnership agreement forbade each partner to “ employ any of the money or effects of the partnership * * * without the written consent of the other, and then only in the usual and regular course of business.” No such consents were given, nor were they waived, either expressly or by implication. Such limitation is fundamentally inconsistent with carrying on business under the partnership form of organization. I concur in the Per Curiam opinion to the extent that, if any partnership between appellant and respondent came into existence, it was terminated on or about July 11, 1947, but consider that the partnership agreement was such in name only, and vote to dismiss the complaint upon the ground that no partnership was formed between the parties.
Peck, P. J., Glewwow, Callahaw and Shiewtag, JJ., concur; Yaw Yoorhis, J., dissents in part in opinion.
Interlocutory judgment modified in accordance with the opinion herein and, as so modified, affirmed, with costs to the appellant. Settle order on notice making new findings of fact and conclusions of law in accordance with said opinion and reversing findings of fact and conclusions of law inconsistent therewith. Settle order on notice.