56 A.D. 4 | N.Y. App. Div. | 1900
This action was brought upon a contract of agreement entered into between the plaintiff and the defendant by which the plaintiff leased to the defendant a building in New York known as the Hotel San Remo. The agreement is set forth in full in the complaint, and the judgment demanded is that the defendant account to the plaintiff regarding the affairs and assets under the said agreement, and of their respective rights and interests therein, and that the plaintiff recover judgment for the amount found due on the accounting. The defendant admits the signing of the agreement set forth in the complaint, and alleges an agreement by which the parties to the action agreed to submit their differences to arbitration; that arbitrators were appointed, and that the affairs were being investigated by the arbitrators at the time of the commencement of the action. The action came on for trial at Special Term. There was no objection taken by counsel at the trial to the form of the action, nor was there any demand for a trial by a jury. By the agreement in question the plaintiff leased to the defendant a hotel located in the city of New York for the term of ten months, beginning on December 1, 1893, and ending on October 1, 1894, at the monthly rent or sum of $3,000, “ subject to be increased from time to time as hereinafter provided, payable on the first day of each month in advance, beginning with the first day of December, one thousand eight hundred and ninety-three.” The plaintiff covenanted that the defendant, “ on paying the said yearly rent and performing the covenants aforesaid shall and may peaceably and quietly have, hold and enjoy the -said demised premises for the term aforesaid.” The contract then further provided that the defendant “ agrees to render unto the party of the first part each month during the continuance of this lease, a statement of all the necessary and proper cost and expenses of conducting the hotel business in said building and of furnishing chamber service to the guests and proper food and table service, and, also, a statement of the amount received by him from them from time to
■ It was proved upon the trial that under this agreement the defendant entered into possession of the hotel property and managed the hotel during the term provided for in this agreement; that certain statements were rendered to the plaintiff from time to time by the bookkeeper employed by the plaintiff under the agreement; that subsequently the plaintiff employed an accountant to go over these hotel books, who rendered a report as to the statements contained in the books, and these monthly reports rendered by the bookkeeper, appointed by the plaintiff, and the reports of the accountant, were put in evidence. There was evidence tending to show that these various reports, were not complete, as they only'purported to show, the receipts and disbursements during each month, and that many of the bills, both for supplies furnished for the hotel and the accounts of customers of the hotel, would run over from month to month, not being- collected at the end of each month.
We think that, under the peculiar provisions of this agreement, the plaintiff was entitled to maintain an action for an accounting. The plaintiff was to be paid a certain fixed sum for rent of the premises leased. He was also to be paid a certain additional sum upon condition that there were profits realized from the business conducted at the hotel. It is true that that sum was to be paid to him as an addition to the rent that the defendant agreed that he should receive; but the amount that was coming to him as stick
There is no question of evidence in the case that requires notice as no evidence upon the particular issue before the court which • would have aided the defendant was excluded.
Upon the whole case I think that the plaintiff was entitled to an interlocutory judgment, and the judgment appealed from should be affirmed, with costs.
O’Brien and McLaughlin, JJ., concurred; Van Brunt, P. J., and Hatch, J., dissented..
Judgment affirmed, with costs.