
    John D. Demarest, App'lt, v. William Koch, Impl’d, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed May 5, 1890.)
    
    Partnership.
    An agreement by which one party is to purchase property and construct buildings thereon and the other to advance a certain amount thereon which provides that on completion one of said houses and lots is to be conveyed to the latter, or at his option one-half the net proceeds of sale of the houses and lots is to be paid him in case a sale is determined upon, “it being the intent of the parties to equally divide any profits which may be realized by the sale of said buildings,” is merely an executory contract of sale, and does not make the parties partners.
    Appeal by plaintiff from a judgment dismissing the complaint on the merits as to defendant Koch, and directing judgment in his favor.
    The complaint alleges that defendants were partners, and jointly interested in the construction of two houses in the city of New York; that plaintiff agreed with defendants to do certain work in the .construction of said houses; that he did the work, but that the defendants have only partly paid him therefor.
    The answer of the defendant Koch denies the allegations of the complaint, and alleges that the contract was made between plaintiff and another defendant, and not with defendant Koch.
    One Spaulding and defendant Koch entered into an agreement by which the former was to purchase certain lots of a third person and erect two apartment houses thereon, and Koch was to advance certain moneys for their completion. In consideration thereof Spaulding agreed to convey to Koch either of the two houses, or, at the option of Koch, in case the houses were sold at a price satisfactory to both parties, to pay him one-half the net proceeds of the sale, “ it being the intent of the parties to equally divide any profits which may be realized by the sale of said buildings.” Spaulding assigned his interest in the agreement to his wife, who made the contract in question with plaintiff.
    
      S. V. R. Cooper, for app’lt; Augustus Ford, for resp’t
   Per Curiam.

A careful examination of the questions presented upon this appeal fails to disclose reversible error.

The agreement of May 22, 1884, was nothing more than an ex-ecutory contract of sale, Spaulding agreeing, upon Koch’s payment as provided for, to convey to the latter, upon construction, either of two certain houses and lots somewhat encumbered. The fact that Koch had an option to receive one-half the sum received for the houses and lots upon a sale, if the parties determined to .sell (for the sale was only to be at a price satisfactory to both parties) in no way affected the nature of the contract. The stated intent to divide profits did not refer to a division of profits as such; it is qualified by that which precedes it as to a division of the sum received on a sale.

The contract in no way affected the relations of the parties as to third persons.

The judgment should be affirmed.

Truax and Dugro, JJ., concur.  