(dissenting). The amended complaint, in my opinion, corrects the fatal defect pointed out by Justice Cobcoban with regard to the prior complaint; namely, the failure factually to allege a joint venture between the three brothers for the benefit of themselves and their respective family groups including an agreement to maintain and preserve in each brother and in each group a one-third proprietary interest. It also alleges the breach of the agreement and sues for a declaratory judgment as to the rights and relationship of the parties.
The complaint is most unusual in the number of corporations alleged to have been organized pursuant to the original claimed joint venture; but essentially the same issue would be presented if only one corporation was alleged to have been organized to implement the joint venture. I think it is going too far to say as a matter of law that joint venturers may not organize a corporation to implement their joint venture. The respective joint ventures or their respective successors remain inter sese joint venturers though, after the corporation has been organized, it is to the rest of the world a corporation, but the joint venturers have not the privilege of changing at their whim from joint venturers to stockholders and vice versa. The present complaint specifically alleges the joint venture agreement and the acts and transactions carried on pursuant thereto or in violation thereof; and is, in my opinion, sufficient to withstand a motion to dismiss for insufficiency under rule 106.
Accordingly, I dissent and vote to affirm.
Peck, P. J., Callahan and Bbeitel, JJ., concur with Bastow, J.; Dobe, J., dissents and votes to affirm in opinion.
Order reversed, with $20 costs and disbursements to the appellant and the complaint dismissed, and judgment is directed to be entered in favor of the appellants dismissing the complaint herein, with costs.