(dissenting). We dissent and vote to affirm for the reasons stated by the Referee and particularly on the ground stated by him that although oral the agreement not to increase the number of directors was made, before incorporation, between Christal and Petry who were then the sole owners of the business and stood in a fiduciary relationship to each other as partners or joint venturers (See Sinclair v. Purdy, 235 N. Y. 245).
Glennon and Callahan, JJ., concur with Cohn, J.; Peck, P. J., and Van Voobhis, J., dissent and vote to affirm in opinion.
Judgment reversed, the complaint dismissed, with costs and the relief demanded in the counterclaim granted. Settle order on notice.