William E. Carberry, Respondent, v. Flushing Asphalt Corporation et al., Appellants

William E. Carberry, Respondent, v. Flushing Asphalt Corporation et al., Appellants.— [MAJORITY] To recover on the theory of fraud for refusing to give a correct statement of account, plaintiff had the burden of showing not only that the account was wrong, but that a correct account would reveal a profit great enough for him to share in it under his contract. Whether the action sounded in contract or in tort, the measure of damage and the burden of proof would be to establish a right to a share in the profits. This is not supported in this fragmentary and confused record before us. Judgment unanimously reversed, with costs to the appellants, and judgment is directed to be entered in favor of the defendants dismissing the complaint herein, with costs. Present — Peck, P. J., Glennon, Cohn, Breitel and Bergan, JJ. [See post, p. 684.]