
    Erwin W. Alpert et al., Respondents, v. E. George Sebo, Appellant.
    First Department,
    June 15, 1945.
    
      Robert H. Spelman for appellant.
    
      Rosalind Kramer, of counsel (Sherman & Goldring, attorneys), for respondents.
   Per Curiam.

The instrument which is the basis of this action, in our opinion, is a lease and not an agreement of joint venture. The parties are described as “ lessor ” and “ lessee ” and the instrument refers to itself as “ this lease ”. The compensation, consisting of the payment of a specified sum in addition to a share of the net income from the operation, of the premises, is referred to as “ the annual rental for the "said property ”. The fact that the defendant pays a share of such net income as rental, the plaintiff not being liable for any part of the losses, does not constitute the parties joint adventurers (Hammond Oil Co. v. Standard Oil Co., 259 N. Y. 312; Byrne v. Blaker Advertising Agency, Inc., 239 App. Div. 395; Jasper v. Bernstein, 259 App. Div. 638) nor create a fiduciary relationship cognizable in equity (Harle v. Brennig, 131 App. Div. 742; Moore v. Coyne, 113 App. Div. 52). Such remedy as may exist for the breach of the provisions of the lease is at law.

The order insofar as it denies the defendant’s cross motion to dismiss the complaint as to the plaintiffs, Erwin W. Alpert and Ida A. Bitter, should be reversed and the motion to dismiss the complaint as to said plaintiffs granted, and the order, insofar as it grants plaintiffs’ motion for the appointment of a receiver, should be reversed and the said motion denied, with $20 costs and disbursements to the appellant."

Martin, P. J., Townley, Glennon, Untermyeb and Dore, JJ., concur.

Order insofar as it denies the defendant’s cross motion to dismiss the complaint as to the plaintiffs, Erwin W. Alpert and Ida A. Bitter, unanimously reversed and the motion to dismiss the complaint as to said plaintiffs granted, and, insofar as the order grants plaintiffs’ motion for the appointment of a receiver it is reversed and the said motion denied, with $20 costs and disbursements to the appellant.  