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Leventhal v. Atlantic Rainbow Painting Co.

Decided: June 30, 1961.

CARL LEVENTHAL, PETITIONER-APPELLANT,
v.
ATLANTIC RAINBOW PAINTING CO., LTD., RESPONDENT-RESPONDENT. CALVIN WATERS, PETITIONER-APPELLANT, V. ATLANTIC RAINBOW PAINTING CO., LTD., RESPONDENT-RESPONDENT



Conford, Freund and Kilkenny. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

[68 NJSuper Page 408] These are workmen's compensation cases brought by Carl Leventhal and Calvin Waters, purportedly as employees of Atlantic Rainbow Painting Co.,

Ltd., a limited partnership association. This association had been formed by Leventhal, Waters, and one Patricia Van Tresco, pursuant to R.S. 42:3-1 et seq. The Division of Workmen's Compensation awarded the petitioners compensation, but the Monmouth County Court reversed on appeal.

The County Court found that the limited partnership association agreement had expired by its own express time limitation prior to petitioners' accident. By reason thereof, it determined that the petitioners, as members of the firm, became general partners upon expiration of the term of the association, and therefore the necessary employer-employee relationship required for a workmen's compensation award did not exist at the time of the accident. The validity of that determination is the issue on this appeal taken by the petitioners.

A certificate of limited partnership association, dated January 27, 1958, signed by Calvin Waters, Carl Leventhal, and Patricia Van Tresco, was recorded in the Monmouth County Clerk's Office in Book 2, page 89. It was expressly provided therein:

"F. The contemplated duration of the association 6 months (six months) from the date of this Certificate is filed in the County Clerk's Office and in no event shall its existence extend or endure beyond the period of 6 months (six months)."

The names of the officers of the association were designated in the certificate as Calvin Waters, chairman, Carl Leventhal, treasurer, and Patricia Van Tresco, secretary. The certificate also provided:

"The above officers will hold their offices for a period of six months and until their successors are duly installed."

Statutory requirements as to the contents and form of the certificate under R.S. 42:3-2 were satisfied.

The petitioners were injured on July 10, 1959, while riding in a truck from job to job, as working employees of

Atlantic Rainbow Painting Co., Ltd. There is no dispute that they suffered an accident arising out of and during the course of their work. They were not engaged at the time merely in the liquidation of the affairs of the association, but were performing new business of the association even though its time limitation had expired, and no new certificate had been recorded amending the duration of the association. We are not concerned on this appeal with the quantum of benefits awarded them by the Division but, since the petitioners were two of the three members of the respondent association, we must decide whether the association existed at the time of the accident as a legal entity separate and apart from its membership, de jure, de facto , or by estoppel. Almost a year had elapsed between the expiration date of the association, as shown by its certificate, and the time of the accident.

A limited partnership association may be formed for a period not exceeding 20 years. R.S. 42:3-2(a) (VII). Obviously, it may be formed for a shorter time. In this case the duration of this limited partnership association was fixed by its members in their written agreement at six months from the date of the certificate, so that the association would expire by its own limitations on July 27, 1958. In fact, as noted above, the agreement ...


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