145 N.Y.S. 994 | N.Y. App. Term. | 1914
This is an appeal by the defendants from an order denying defendants’ motion for judgment on the pleadings. The sufficiency of the complaint alone is involved. The original complaint was held insufficient in this court. Lasky v. Coverdale, 143 N. Y. Supp. 756. Since that time an amended complaint has been served, but it does not obviate the difficulty involved in the plaintiff’s position. The amended complaint alleges that the plaintiff and the def endants entered into a copartnership for the production of a vaudeville sketch during the season of 1912-1913. The copartnership agreement is annexed to the amended complaint, and contains the following provisions:
“All the profits are to be divided as follows:
“ Miss Coverdale is to receive one-half of salary received, after commissions have been paid, Mr. White is to receive one-half of salary, and Mr. Lasky is to receive twenty-five dollars weekly for services rendered. ’ ’
The contract being a part of the complaint, the rights of the parties are to be determined by it rather than by the allegations of the complaint as to the effect of the contract. Cupples Envelope Co. v. Lackner, 99 App. Div. 231.
In the absence of allegations showing that there was an accounting between the parties, a balance struck and a promise to pay, a common law action between the parties will not lie.
Under the contract it is impossible to ascertain what amount, if any, is due the plaintiff without an accounting. Upon an accounting it would be possible to determine the money received in the joint venture and
It follows that the order should be reversed with ten dollars costs and disbursements, and defendants’ motion for judgment on the pleadings dismissing the complaint should be granted, with ten dollars costs.
Guy and Delany, JJ., concur.
Order reversed, with ten dollars costs and disburse-; ments.