Soechtig v. Amick

Rabin, J.

(dissenting). It is the position of respondent that in arriving at the book value ” of his interest, the designated accountant failed to credit earned but uncollected sales commissions, whereas he deducted expenses incurred in effecting the *706sales, and that large reserves for contingencies which never existed were listed as liabilities. Respondent claims that in so doing the accountant failed to carry out the agreement between the parties as to the manner in which the accounting should he done. He urges that whereas the accountant may have followed past “ practices ”, the agreement called for the following of past accounting principles ” which he asserts would equate with good accounting principles. Sufficient has been shown to raise a triable issue on that question. If, indeed, the accountant failed to follow the procedures agreed upon between the parties then the respondent should not be bound by the accountant’s report. Appellants have not shown sufficient on the second issue of accord and satisfaction to enable the granting of summary judgment on that defense. The order appealed from should be affirmed.

Peck, P. J., and Breitel, J., concur with Bastow, J.; Rabin, J., dissents and votes to affirm in opinion in which Cohn, J., concurs.

Order reversed, with $20 costs and disbursements to appellants, and the motion granted, and judgment is directed to be entered in favor of the defendants dismissing the complaint herein, with costs.