195 A.D. 305 | N.Y. App. Div. | 1921
Lead Opinion
The complaint shows that the plaintiff has a cause of action against the defendant for a balance on account of one-half the commissions received by it from the Empresa Naviera de Cuba, a foreign corporation, for negotiating the purchase by it of four steamships. It is, however, framed in equity and, therefore, on demurrer the sufficiency thereof depends upon whether or not it shows an equitable cause of action (Gosselin Corporation v. Mario Tapparelli fu Pietro, Inc., 191 App. Div. 580; Spring v. Fidelity Mutual Life Ins. Co., 183 id. 134; Consolidated Rubber Tire Co. v. Firestone Tire & R. Co., 135 id. 805; Low v. Swartwout, 171 id. 725; Logan v. Fidelity-Phenix Fire Ins. Co., 187 id. 153); but if issue had been joined by answer and the cause brought to trial as a suit in equity the complaint could not be dismissed on the ground that the plaintiff is not entitled to equitable relief provided it shows a cause of action at law, and in that event it would be transferred to the jury calendar. (Thomas v. Schumacher, 17 App. Div. 441; Glyn v. Title Guarantee & Trust Company, 132 id. 859; Everett v. De Fontaine, 78 id. 219; Perrin v. Smith, 135 id. 127.) The plaintiff alleges that on or about the 20th of November, 1919, he and the defendant entered into a contract by which the latter agreed to pay to him “ one-half of a commission of $10,000, when and as received by it ” from said Empresa Naviera de Cuba, on the purchase by it of the steamship St. Paul and that the plaintiff and defendant thereafter co-operated in securing the sale of said steamship to the foreign corporation, which paid the defendant the sum of $10,000 “ as a commission for the services of the plaintiff and the defendant ” in
It follows that the order should be reversed, with ten dollars costs and disbursements, and defendant’s motion denied and plaintiff’s motion granted, with ten dollars costs, but with leave to defendant to withdraw the demurrer and answer on payment of the costs of the appeal and motion.
Clarke, P. J. Merrell and Greenbaum, JJ., concur; Dowling
Dissenting Opinion
The plaintiff alleges in his complaint as follows:
“ 2. That, heretofore and on or about the 20th day of November, 1919, the defendant entered into an agreement with the plaintiff under the terms of which the defendant agreed to pay to the plaintiff one-half of a commission of $10,000, when and as received by it from Empresa Naviera de Cuba, a foreign corporation, on the purchase by said Empresa Naviera de Cuba of the steamship ‘ St; Paul ’ and thereafter and in the month of December, 1919, it was further agreed by and between the plaintiff and the defendant that in consideration of the assistance to be rendered by the plaintiff to the defendant in procuring steamships for said Empresa Naviera de Cuba, the defendant would pay to the plaintiff one-half of any commission which might be paid to it by Empresa Naviera de Cuba for purchasing steamships in the United States of America, such one-half of said commission to be paid to the plaintiff immediately upon receipt of the same.”
He then alleges that plaintiff and defendant co-operated in securing the sale of the steamship St. Paul to Empresa Naviera de Cuba, which paid defendant the sum of $10,000 as a commission for the services of plaintiff and defendant. He further alleges that in November and December, 1919, and January, 1920, plaintiff and defendant procured the purchase by the. same company of the steamships Minneapolis, Yadkin and Watauga, under an agreement by said company that it would pay defendant for its services and those of plaintiff five per cent of the purchase price thereof; that said company has paid to defendant the commissions due under said agreement for the purchase of said three steamers, “ and the defendant received such amounts for the account of the plaintiff and the defendant under said agreement with the plaintiff that it would pay one-half thereof to this plaintiff,” and plaintiff demands judgment: First. That an- accounting be had between the plaintiff and the defendant of all amounts received by the defendant from the Empresa Naviera de Cuba for the services of the plaintiff and the defendant in connection with the purchase of the steamships St. Paul, Minneapolis, Yadkin and Watauga. Second. That upon com
The complaint is framed solely in equity and I can find no equitable cause of action stated therein.
I am of the opinion that it set forth no joint ownership of a fund with a right to .an accounting, nor a partnership in said fund, but an agreement on the part of plaintiff to render services for defendant, in connection with the purchase of steamships, for which defendant bound itself to pay plaintiff one-half of any commissions it received in the premises. I think that only an action at law is set forth, entitling plaintiff to recover one-half of the amount received by defendant under the agreement between them.
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, defendant’s motion denied and plaintiff’s motion granted, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of said costs.