87 N.Y.S. 701 | N.Y. App. Div. | 1904
. The defendants demur that the complaint does not state facts sufficient to constitute a cause of action. . The position of the learned counsel for the appellants is that the plaintiff seeks equitable relief to which he is not entitled, and that a complaint in an action at law is made to the equitable side of the court.
Leggett v. Stevens (77 App. Div. 612) holds that if the complaint state a cause of action of which some court has cognizance, a demurrer that the complaint does not state facts sufficient to constitute a cause of action, does not technically raise the question whether the equity branch has jurisdiction, but that it can only be raised under the second ground specified in section 488 of the Code of Civil Procedure. . '
In Hotel Register Co. v. Osborne (84 App. Div. 307) the court states the general rule that if the facts show; that the plaintiff.is entitled either to equitable or to legal relief, the complaint is not demurrable upon the ground stated in the demurrer, citing Middleton v. Ames (37 App, Div. 510) and Lester v. Seilliere (50 id. 239). Abbey v. Wheeler (170 N. Y. 122, 127). holds that if the facts alleged in the complaint justify legal or equitable recovery, a demurrer upon the ground stated in this case is not well interposed, although the pleading may be open to correction by motion or otherwise.
We must first ascertain whether the facts alleged, if taken as facts, state any cause of action. (Sage v. Culver, 147 N. Y. 241.) The plaintiff complains that the defendants were copartners in businéss as brokers and money lenders, who agreed to pay to the plaintiff for services to the copartnership an. equal share of their .profits.
. The plaintiff superintended their business and acted for them from August 15, 1902, until February 21, 1903. Plaintiff’s share of such copartnership profits for such period is $5,000 or more, which is unpaid. The defendants have failed or refused to account therefor, I think that the facts stated establish plaintiff’s right to some form of legal relief.
But the point of the learned counsel for the appellants is that the plaintiff also pleads that an accounting is necessary to determine the true amount due and payable, and that he prays judgment for the accounting and for a receiver. But the plaintiff also prays “ that
The averments that seek equitable relief may be regarded as surplusage. (Hackett v. Equitable Life Assurance Soc., 50 App. Div. 266, 272.) Without them there is- good cause of action at law sufficiently well stated to prevail against this demurrer, and there is a specific demand in the prayer for relief for money, namely, $5,000. If, in addition thereto, the plaintiff • prays for other specific or general relief, to which he is not entitled, he is not, therefore, to be dismissed by the court. (Wetmore v. Porter, 92 N. Y. 76; Hotel Register Co. v. Osborne, supra ; Mitchell v. Thorne, 134 N. Y. 536.)
The learned counsel for the appellants also insists that the pleading is bad in that the plaintiff has not pleaded performance of the condition precedent. The pleader states that in consideration of the plaintiff giving his services and allowing his name to be used in raising the sum of $21,600 for the purpose of said business, the ¡said defendants promised and agreed to give to him an equal, share in i;he profits thereof while he continued to act and perform services on behalf of said copartnership business, and that the said plaintiff continued to superintend the said business and act on behalf of the ■said partners therein from the said 15tli day of August, 1902, until the 21st day of February, 1903. The criticism is that the pleader has not sufficiently alleged that the plaintiff did allow his name to be used in raising the sum of $21,600. I think that there is -force in the criticism, but even if it be sound, it is not enough to support the demurrer. It cannot be assumed that the contract was entire in the sense that failure to permit the use of the plaintiff’s name -defeated his right to any share in the profits, although he performed services and acted for the defendants. The question is whether, upon the facts stated, the plaintiff is entitled to any relief whatever. (Strubbe v. Kings County Trust Co., 60 App. Div. 548, 550; affd., 169 N. Y. 603; Jaques v. Morris, 2 E. D. Smith, 639, 643; Price v. Brown, 10 Abb. N. C. 67.) Wp cannot say that he is not.
The interlocutory judgment should be affirmed, with costs.
All concurred.
Interlocutory judgment affirmed, with costs.