106 N.Y.S. 28 | N.Y. App. Div. | 1907
The plaintiff does not state in his- affidavit what kihd of-an- action he has. brought by the service of the summons. It may be gathered from such-affidavit that it is' a suit for an accounting. It states that the plaintiff had an oral agreement with the defendant to-got purchasers of real estate owned or controlled' by it, the'■'plaintiff to be paid a percentage of the net profit -the"defendant should realize on the real estate thus sold, and that many sales were made -by- the plaintiff. Ho examination is necessary -to frame a complaint for an accounting. If the defendant be under the duty to account to the plaintiff, and refuses to do so, as 'the- plaintiff’s affidavit' alleges, then all that the plaintiff needs to' do is to frame a bare and lean •complaint showing that he is entitled to an accounting. Then the course is to obtain' an interlocutory judgment that the defendant file an account. The practice following- that is equally familiar to the profession. The plaintiff wants to get the. account before he serves a complaint. '
The order should be reversed.
Hirsohberg, P. J., Hooker, Rich and Miller,. JJ., concurred.
■ Order reversed,, with tep dollars costs and disbursements, and motion granted, with costs. ' . ' ■ '
