73 N.Y.S. 247 | N.Y. App. Div. | 1901
Lead Opinion
The complaint in this action alleges the making of a contract between the parties by which the plaintiff was employed as a salesman, and as compensation for services rendered he was to receive five per cent on all sales of the goods of the defendants in the State of New Jersey, the city of' New York and Long. Island, whether such sales were made directly by' the plaintiff or otherwise, and also the exclusive right to offer for sale and to sell in such' territory "all brands of cigars manufactured or dealt in by the defendants, and also the exclusive right to sell said goods in the city of Philadelphia;.
We are of the opinion that the court erred in dismissing the complaint. It clearly states a cause of action at law. It is true that the plaintiff was not entitled to the relief asked, that is, he was not •entitled to an accounting. His right to recover was- based upon the contract and he was entitled to recover, if at all, a moneyed judgment. But the fact that he was not entitled to the equitable relief demanded was no reason why his complaint should have been dismissed. Had the defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action the demurrer would have.been overruled (Wetmore v. Porter, 92 N. Y. 76), and they cannot accomplish by the service of a notice of trial what they could not accomplish by a demurrer. The defendants had interposed an answer, and having done so, the plaintiff by permission of the court (Code Civ. Proc. § 1207) might take any judgment consistent with the cause made by the complaint and embraced within the issue. In Murtha v. Curley (90 N. Y. 377) the court, referring to this section of the Code, said: “ Under our present system of practice a plaintiff is not to be turned out of court when an answer had been interposed, because he has prayed for too much or too little, or for wrong relief.”
But the question here presented, if there was any doubt about it before, was settled by this court in Thomas v. Schumacher (17
It follows that the judgment appealed from must be reversed and a new trial granted, with costs to appellant to abide the event.
•Patterson, O’Brien and Laughlin, JJ., concurred; Van Brunt, P. J., dissented.
Dissenting Opinion
I dissent. There was no possible way in which - -the defendants could have compelled a jury.trial. They could not.put the case upon the calendar of the jury Trial Term, because it did not come within
Judgment reversed, new trial granted, costs to appellant to abide event.