Danks v. Gordon

119 Misc. 571

• Court: New York Supreme Court
• Decided: November 15, 1922
• Status: Published

Opinion

Lewis, J.

The prayer for relief in the complaint seeks an accounting for moneys paid out to representatives of the estate of Banks; that the title to a song be adjudged and decreed to be the property of the plaintiff; that Gordon, individually and as administrator, account for the number of copies of the song sold; that the defendants Albert V. Banks and Gertrude Banks be restrained from receiving for and on account of this plaintiff any further sums of money from the defendant Gordon, and that the defendants be required to pay over to Albert V. Banks, as administrator, any balance of royalty, and, in addition, that the damages be assessed.

The state courts have not jurisdiction of an action to determine the title to the song described. Danks v. Gordon, 272 Fed. Rep. 821, 824; Moore v. Coyne, 113 App. Div. 52.

The relief sought by way of an accounting for royalties is improper for the action must be at law. Henderson v. Dougherty, 95 App. Div. 346; Moore v. Coyne, supra.

A complaint framed in equity and seeking equitable relief is insufficient, even though the facts pleaded may set up a cause of action at law. Gosselin Corp. v. Mario Tapparelli fu Pietro, Inc., 191 App. Div. 580; Boiardi v. Marden, 194 id. 307.

The motion to dismiss is granted, with leave to plaintiff to amend within twenty days on payment of ten dollars costs.

Ordered accordingly.