113 N.Y.S. 40 | N.Y. App. Div. | 1908
Lead Opinion
The complaint was dismissed at the opening óf the trial before evidence taken. The sole question for determination, therefore, is whether the complaint states a cause of a.ction. We may assume for the argument that no cause of action is stated for a discovery of evidence, nor a cause of action at Jaw for damages, because no definite sum is stated in which plaintiff has been damaged. ¡Nevertheless, we are of opinion that the complaint states two causes of action in equity for an accounting.
The first cause of action stated is for an accounting for the proceeds of certain farm produce, which was the product of a farm which plaintiff was working upon shares for the defendant’s testator. This farm produce was intrusted by the plaintiff to defendant’s testator for sale, and “ sold and disposed of by said deceased in his lifetime, and the proceeds thereof received by him for the joint use and benefit of himself and the plaintiff.” The lessor and lessee under a lease of a farm upon shares become tenants in common of the crops. If one tenant in common receives the common property, either by consent or wrongfully, he holds it as trustee for his cotenant, to the extent of the interest of that cotenant, and the cotenant is entitled to proceed in equity to compel an accounting. (Abbey v. Wheeler, 170 N. Y. 122 ; Dyckman v. Valiente, 42 id. 549.)
For a second cause of action the plaintiff alleges that he and
All concurred.
Concurrence Opinion
The complaint in substance sets forth three causes of action: (1) To recover the plaintiff’s half of the farm produce which the defendant’s, testator had sold; (2) to recover his half of the profits on some horse transactions, which profits defendant’s testator had received; (3) to recover for the value of various services performed
Por the purpose of reviewing the correctness of the judgment, it is not necessary to decide whether the complaint sets forth a cause of action for equitable or legal relief; it would seem to be a reproach to our judicial system if upon the facts stated the plaintiff is not entitled to some relief. No motion to make the complaint more definite and certain was made, but at the trial, for the first time, objection was raised to the complaint, and it was dismissed for insufficiency, on the apparent assumption that equitable relief alone was sought, and that the matters set forth did not justify such relief.
Upon the motion as made, the question Was not for the court to determine whether the relief desired was legal or equitable, but whether, upon the conceded facts, the plaintiff was entitled to any relief. I am inclined to think that the allegations of the complaint entitled the plaintiff to equitable relief. If not, he was clearly entitled to recover damages.
If-we treat the action as á legal one, the complaint is clearly subject to a motion to make it more definite and certain, and to have the causes of action stated and numbered, but such objections were waived. Upon a motion to make the complaint more definite and certain, the excuses set up in the complaint for not stating more . particularly the amount of damages would come before the court for consideration in determining whether the plaintiff may be compelled to state them more specifically. Without discussing the technical question whether the complaint is one at law or in' equity, it is apparent, taking the allegations as true, that the plaintiff is entitled to some relief.
The judgment, therefore, should be reversed;
Judgment reversed and new trial granted, with costs to appellant to abide event.