Order entered June 15, 1965, granting partial summary judgment to defendants, unanimously modified, on the law, to the extent of providing that the Special Referee take proof of damages, if any, arising from the breach of the partnership agreement consequent on the decedent's sale of the partnership property, and, as so modified, affirmed, with $50 costs and disbursements to plaintiff-appellant. Defendants-respondents' surrebuttal brief concedes "the real estate in question was partnership property, Clara Sheridan's interest in it was as a tenant in partnership, and not as a tenant in common". The purported sale by the decedent was a breach of the partnership agreement giving rise to an action for damages on the part of the plaintiff. ( Burnstine v. Geist, 257 App. Div. 792, 793-794.)
Concur — McNally, J.P., Stevens, Steuer, Capozzoli and Bastow, JJ.