82 N.Y.S. 1051 | N.Y. App. Div. | 1903
Lead Opinion
When this case was at issue under the first amended complaint and answer thereto the plaintiff made a motion for a reference upon the ground that a trial of the action would require the examination of a long account. This motion was opposed by the defendants and denied, whereupon in March, 1900, the plaintiff obtained leave to serve a second amended complaint, and in June, 1900, the defendant answered this second amended complaint. The case was then put on the calendar and remained in that condition until called for trial in February, 1903, when it was adjourned until March 27, 1903, the case then being set down for trial. The defendants subsequently moved for a reference, which was granted, and from the order granting that application the plaintiff appeals.
This action of the defendants in opposing the motion made by the plaintiff when the case was first at issue, and then when the action was reached for trial oh the calendar moving for a reference which would involve a long delay, is not to be encouraged. The defendants’ application should not be granted■ unless it is.apparent from the nature of the action and the character of the account to be investigated that it is clearly impossible to satisfactorily dispose of the case before the court or jury. It is alleged by the defendants that the amendment of the complaint has entirely changed the cause of action so that, although not referable under thé original complaint, under the amended complaint a proper trial of the action requires that it should be tried by a referee.
The original and first amended complaints are not a part of the record, but from the statement in the affidavit it would appear that the plaintiff sought to enforce his right as a partner of the defendants. By the second amended complaint it is alleged
The answer denies the substantial allegations of the complaint, except that it admits- that in the month qi September, 1892, the corporation' named in the complaint was liquidating its affairs and attempting to wind up its business; that in certain transactions the plaintiff received' from the defendants one-third of the profits made by them in the transactions and business as his compensation for. his services to the defendants in such transactions; and for a further defense the defendants allege that the plaintiff has been fully paid for all claims and demands of every description which exist against the defendants, and that all transactions of every description between the plaintiff and the defendants were stated, adjusted and settled between them.
It is a little difficult to determine from these allegations just what is the cause of action sought t'o be enforced. Although the plaintiff does not specifically ask for an accounting, the complaint alleges
It follows that the reference was improper until the main issue in the case, viz., as to the contract between the plaintiff and the defendants, was disposed of; and that the order appealed from must be reversed,' with ten dollars costs and disbursements, and the motion for a reference denied, with ten dollars costs.
O’Brien and Hatch, JJ., concurred; Patterson, J., concurs on the ground that a reference is not required until after the main issues are tried.
Concurrence Opinion
I concur in the result upon the ground, however, that this is an action at law for compensation for services determinable by profits and not an action for an accounting. It is essential to show the amount of profits in order to determine the amount of the recovery, but such an account may be taken by the court and jury, or if that be impracticable on account of the number of items, then by a referee, and is. in.no sense an equitable accounting. (Smith v. Bodine, 74 N. Y. 30; Richardson v. Hughitt, 76 id. 55 ; Code Civ. Proc. §§ 1013, 1015; Parker v. Pullman & Co., 36 App. Div. 208 ; McCullough v. Pence, 85 Hun, 271; Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362.)
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.