Greenfeld v. Schoenfeld

129 N.Y.S. 3

Opinion

SEABURY, J.

The complaint in this action was dismissed, apparently upon the ground that the action involved an accounting between partners, and that the Municipal Court was without jurisdiction to entertain such an action. The return shows that the trial was summaty, and it appéars that the plaintiff was hardly given an opportunity to develop the theory of his case, or to present evidence in support of it. ..It is not clear from an examination of the record whether the agreement between the. parties was to divide the proceeds of their enterprise or the profits. Nor are we able to determine from the record whether the present action involves an accounting. Voegtlin v. Bowdoin, 54 Misc. Rep. 254, 104 N. Y. Supp. 394.

We think the interests of justice require that there should be a new trial, in which the plaintiff shall be permitted to present his proof, so that the court may intelligently determine the nature of the cause of action upon which he claims a right to recover.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.