
    Himoff Industries Corp., Respondent, v. Simon Srybnik, Doing Business as S & S Machinery Company, Appellant.
   Judgment, uniinimously modified, on the law and the facts, to delete the second decretal paragraph providing for a severance of a portion of the second cause of action, and to delete the sixth to the eleventh decretal paragraphs inclusive, providing for an accounting by the defendant; and judgment otherwise affirmed, without costs or disbursements to either party. The plaintiff does not allege and the evidence does not establish the existence of a joint venture with regard to the purchases by defendant of the equipment and articles purchased by him at the auction conducted by Weisz of the 'Cramp Shipyard assets. Furthermore, it was not established that the funds and credit of the particular joint venture, which was alleged and proved, were used by defendant to purchase the equipment and articles at said auction. The defendant had the right to and did purchase the same for his sole account, and he is not accountable for any profits which may be realized from the purchases.

Concur —■ Botein, P. J., Breitel, Rabin, Eager and Bastow, JJ.  