Clarke, P. J.:
The action was brought on an agreement under which Courtlandt Babcock retired from the copartnership of Babcock, Swartwout & Co. in which he was engaged with the defendants Swartwout and Appenzellar in the business of note and [726]*726stock brokers. By the terms of this agreement Swartwout and Appenzellar were to pay Babcock for his interest and the good will of said partnership $5,000 per annum, “ or such less amount as may be earned by them for profits from their business as commercial paper or bond or stock brokers, or either or both, which amount shall be a first charge and lien upon the business of Swartwout & Appenzellar,” and their successors, to be paid in equal monthly installments on the first day of each and every month of each and every year during the life of said Babcock. It was further agreed that Babcock was not to be nor remain either an active or a silent partner in said firm nor have any interest whatsoever therein further than the lien or charge aforesaid, and Babcock agreed that he would not at any time engage in business as a commercial paper broker. The complaint alleged that for a number of years subsequent to November 1, 1905, said firm paid to plaintiff under said agreement an amount equal to $5,000 per annum as therein provided. Upon information and belief that the amount earned by said firm for profits for the fiscal year ending October 31, 1914, exceeded the sum of $5,000 and that said sum became due and payable on November 1, 1914, and “became and now is a first lien and charge upon the business of said defendants and plaintiff brings this action to foreclose said lien.” Due demand is alleged, “but that the defendants have stated and represented to the plaintiff that their said business was conducted at a loss during the fiscal year ending October 31st, 1914,” and they have failed and refused to pay said $5,000 or any installments thereof.
It is further alleged that on May 24,1912, Courtlandt Babcock duly assigned said agreement to plaintiff and all his right, title and interest thereto and thereunder and all moneys due and to grow due by virtue thereof under the exprest trust to receive and collect the principal, interest and income arising under said agreement and to apply the same to the use of said Babcock and Bertha B. Babcock. Judgment is demanded: (1) That the plaintiff be decreed to have a first lien and charge for the amount due, “upon the said business of said defendants and each of them; ” (2) that the defendants be compelled to render an account of said business for the year in question; [727]*727that the lien be enforced against said business, and “that the defendants pay over to the plaintiff the amount now due and owing by defendants to plaintiff as aforesaid; ” (3) that the defendants be enjoined from transferring or disposing of the assets of their said business until the payment of said first charge and lien and that a receiver be appointed.
The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The learned Special Term overruled the demurrer and the defendants appeal.
The pleader has clearly attempted to state a; cause of action in equity and has demanded equitable relief, viz., the foreclosure of a so-called lien, an accounting, a receiver and an injunction. The respondent states in his brief: “ The plaintiff seeks to enforce a lien provided for in the agreement,” and claims that the complaint sets out a good cause of action in equity for the foreclosure of a lien, basing his contention upon the specific language of the contract, which “ shall be a first charge and lien upon the business of Swartwout' & Appenzellar * * * and which shall also be a first lien and charge upon the business of the successor or successors of said firm, * * * the intent being that the charge and lien aforesaid shall continue as against said business irrespective of the retirement or addition of any individual, firm or corporation as a partner or otherwise.” And again, “nor shall he have any interest whatsoever therein further than the lien or charge aforesaid.”
He further claims that he is entitled to an equitable action for an accounting to determine the profits.
It seems to me that the language of the agreement, “first lien and charge,” meant no more than this, viz., that out of any profits that might be made the plaintiff had a preferential right to payment up to §5,000 per annum before the partners should be entitled to receive any part of said profits. I cannot find anything to which a lien, as known to the law or in equity, could attach. It certainly did not attach to the property and assets existing at the time of the execution of the agreement, because that instrument provided, “the joint stock in trade shall from said 1st day of November, 1905, become, remain and [728]*728continue the sole property of the said Richard H. Swartwout and Paul Appenzellar, and the lease of the premises now occupied by said firm and all other property belonging to said firm shall be and the same hereby is assigned, transferred and set over ” to them. It further provided for a closing of the books of the copartnership as of the 1st of November, 1905, and a final accounting inter sese, “ and upon the receipt by said Courtlandt Babcock of the money and property found to be due to bim on said accounting all his interest in the property and assets * * * shall cease.” It was also provided “ that said business shall be exercised and carried on from the said 1st day of November, 1905, by the said Richard H. Swartwout and Paul Appenzellar under the name of Swartwout & Appenzellar * * * for their own benefit only and at their own risk.”
The business could not be carried on if a lien was attached to any or all of the property and assets of the partnership. Nor ha,K any lien attached to future unmade and unascertained profits. Under certain circumstances an equitable lien may attach to property thereafter coming into possession, as when a mortgage is made specifically to cover after-acquired property. This upon the doctrine that the mortgage, although inoperative as a conveyance, is operative as an executory agreement which attaches to the property when acquired. “It is most commonly regarded as an application of the principles of specific performance, and it is evident that what is actually done is to enforce the mortgagor’s agreement that his future property shall be mortgaged or stand as security. ” (Williston Sales, § 139.) The right of action for specific performance by virtue of which equity establishes the aforesaid lien will only lie when there is no adequate remedy at law.
Such is not the case here. Plaintiff has a perfect action at law based upon a clear and enforcible agreement to recover a sum of money. Nor is there any basis for an equitable action for an accounting. Neither plaintiff nor his assignor is a partner of defendants. They are not engaged in a common enterprise or a joint venture, and no fiduciary or trust relations exist between them. They bought all he had and agreed to pay therefor at certain times and in a specified way.
[729]*729But it is claimed that if no cause of action in equity is set up in the complaint enough facts are stated to warrant a recovery at law. But no answer has been interposed.
In Swart v. Boughton (35 Hun, 281), an appeal from an interlocutory judgment overruling a demurrer to the complaint, Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
Clarke, P. J.:
The action was brought on an agreement under which Courtlandt Babcock retired from the copartnership of Babcock, Swartwout & Co. in which he was engaged with the defendants Swartwout and Appenzellar in the business of note and [726]*726stock brokers. By the terms of this agreement Swartwout and Appenzellar were to pay Babcock for his interest and the good will of said partnership $5,000 per annum, “ or such less amount as may be earned by them for profits from their business as commercial paper or bond or stock brokers, or either or both, which amount shall be a first charge and lien upon the business of Swartwout & Appenzellar,” and their successors, to be paid in equal monthly installments on the first day of each and every month of each and every year during the life of said Babcock. It was further agreed that Babcock was not to be nor remain either an active or a silent partner in said firm nor have any interest whatsoever therein further than the lien or charge aforesaid, and Babcock agreed that he would not at any time engage in business as a commercial paper broker. The complaint alleged that for a number of years subsequent to November 1, 1905, said firm paid to plaintiff under said agreement an amount equal to $5,000 per annum as therein provided. Upon information and belief that the amount earned by said firm for profits for the fiscal year ending October 31, 1914, exceeded the sum of $5,000 and that said sum became due and payable on November 1, 1914, and “became and now is a first lien and charge upon the business of said defendants and plaintiff brings this action to foreclose said lien.” Due demand is alleged, “but that the defendants have stated and represented to the plaintiff that their said business was conducted at a loss during the fiscal year ending October 31st, 1914,” and they have failed and refused to pay said $5,000 or any installments thereof.
It is further alleged that on May 24,1912, Courtlandt Babcock duly assigned said agreement to plaintiff and all his right, title and interest thereto and thereunder and all moneys due and to grow due by virtue thereof under the exprest trust to receive and collect the principal, interest and income arising under said agreement and to apply the same to the use of said Babcock and Bertha B. Babcock. Judgment is demanded: (1) That the plaintiff be decreed to have a first lien and charge for the amount due, “upon the said business of said defendants and each of them; ” (2) that the defendants be compelled to render an account of said business for the year in question; [727]*727that the lien be enforced against said business, and “that the defendants pay over to the plaintiff the amount now due and owing by defendants to plaintiff as aforesaid; ” (3) that the defendants be enjoined from transferring or disposing of the assets of their said business until the payment of said first charge and lien and that a receiver be appointed.
The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The learned Special Term overruled the demurrer and the defendants appeal.
The pleader has clearly attempted to state a; cause of action in equity and has demanded equitable relief, viz., the foreclosure of a so-called lien, an accounting, a receiver and an injunction. The respondent states in his brief: “ The plaintiff seeks to enforce a lien provided for in the agreement,” and claims that the complaint sets out a good cause of action in equity for the foreclosure of a lien, basing his contention upon the specific language of the contract, which “ shall be a first charge and lien upon the business of Swartwout' & Appenzellar * * * and which shall also be a first lien and charge upon the business of the successor or successors of said firm, * * * the intent being that the charge and lien aforesaid shall continue as against said business irrespective of the retirement or addition of any individual, firm or corporation as a partner or otherwise.” And again, “nor shall he have any interest whatsoever therein further than the lien or charge aforesaid.”
He further claims that he is entitled to an equitable action for an accounting to determine the profits.
It seems to me that the language of the agreement, “first lien and charge,” meant no more than this, viz., that out of any profits that might be made the plaintiff had a preferential right to payment up to §5,000 per annum before the partners should be entitled to receive any part of said profits. I cannot find anything to which a lien, as known to the law or in equity, could attach. It certainly did not attach to the property and assets existing at the time of the execution of the agreement, because that instrument provided, “the joint stock in trade shall from said 1st day of November, 1905, become, remain and [728]*728continue the sole property of the said Richard H. Swartwout and Paul Appenzellar, and the lease of the premises now occupied by said firm and all other property belonging to said firm shall be and the same hereby is assigned, transferred and set over ” to them. It further provided for a closing of the books of the copartnership as of the 1st of November, 1905, and a final accounting inter sese, “ and upon the receipt by said Courtlandt Babcock of the money and property found to be due to bim on said accounting all his interest in the property and assets * * * shall cease.” It was also provided “ that said business shall be exercised and carried on from the said 1st day of November, 1905, by the said Richard H. Swartwout and Paul Appenzellar under the name of Swartwout & Appenzellar * * * for their own benefit only and at their own risk.”
The business could not be carried on if a lien was attached to any or all of the property and assets of the partnership. Nor ha,K any lien attached to future unmade and unascertained profits. Under certain circumstances an equitable lien may attach to property thereafter coming into possession, as when a mortgage is made specifically to cover after-acquired property. This upon the doctrine that the mortgage, although inoperative as a conveyance, is operative as an executory agreement which attaches to the property when acquired. “It is most commonly regarded as an application of the principles of specific performance, and it is evident that what is actually done is to enforce the mortgagor’s agreement that his future property shall be mortgaged or stand as security. ” (Williston Sales, § 139.) The right of action for specific performance by virtue of which equity establishes the aforesaid lien will only lie when there is no adequate remedy at law.
Such is not the case here. Plaintiff has a perfect action at law based upon a clear and enforcible agreement to recover a sum of money. Nor is there any basis for an equitable action for an accounting. Neither plaintiff nor his assignor is a partner of defendants. They are not engaged in a common enterprise or a joint venture, and no fiduciary or trust relations exist between them. They bought all he had and agreed to pay therefor at certain times and in a specified way.
[729]*729But it is claimed that if no cause of action in equity is set up in the complaint enough facts are stated to warrant a recovery at law. But no answer has been interposed.
In Swart v. Boughton (35 Hun, 281), an appeal from an interlocutory judgment overruling a demurrer to the complaint, Mr. Justice Haight said: “ Section 1207 of the Code provides that ‘ where there is no answer, the judgment shall not be more favorable to the plaintiff, than that demanded in the complaint. Where there is an answer the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue.’ This complaint contains the general prayer for such other and further relief as to the court may seem proper. If an answer had been put in, and a trial had, it is possible that the court might award the plaintiff possession of the land, but in granting judgment where there is no answer we do not understand that relief can be granted other than that specifically asked for. * * * We do not forget that the failure of the plaintiff to pray for the precise relief to which he is entitled is not a ground for demurrer. But section 481 of the Code provides that the complaint must contain a demand for the judgment to which the plaintiff supposes himself entitled, and this demand may properly be considered by the court in determining the nature of the action set forth in the complaint, whether it is an action at law or one in equity; whether the parties would be entitled to a trial by jury or by the court.” (Citing Edson v. Girvan, 29 Hun, 422; Fisher v. Charter Oak Life Ins. Co., 67 How. Pr. 191; Alexander v. Katte, 63 id. 262, and Kelly v. Downing, 42 N. Y. 71.) He said: “ It thus appears to us that where all of the allegations of the complaint are made for the purpose of procuring equitable relief and where equitable relief alone is asked for, the complaint cannot be sustained for legal redress where no answer has been interposed.” And the judgment was reversed and the demurrer sustained.
In Black v. Vanderbilt (70 App. Div. 16) Mr. Justice 0’Brier said: “ Beading the allegations of the complaint in the light of the prayer for relief, there can be no doubt that, what the plaintiff sought was equitable relief in an equitable action. Were there any such doubt, it would be dispelled by the state[730]*730ment in the brief of the plaintiff on this appeal that ‘ the amended complaint states a good cause of action for equitable relief, and upon the allegations contained in the amended complaint the plaintiff is entitled to maintain an action for an accounting.’ It is true that in a subsequent part of the brief is the contention that if, upon the facts stated, the plaintiff was entitled to any redress, legal or equitable, it was error for the court to sustain the demurrer. This latter proposition for which the appellant contends has been applied in cases where an answer has been interposed and thereafter the sufficiency of the complaint was questioned. We can find, however, no authority for the proposition that where a suit is brought in equity for equitable relief, and the defendant demurs, it then becomes the duty of the court, where the facts would not warrant equitable redress, to hold that the demurrer is bad because it might be concluded, upon some construction of the allegations of the complaint, that the plaintiff has stated certain facts which, disregarding all the others, might convert the suit into an action at law. It is true that a party is not to be turned out of court merely because he has failed to demand the precise remedy to which he is entitled, and that he may state in this complaint the facts upon which he relies in such a manner as to entitle him either to legal or equitable relief. But here, no legal redress is demanded, and it conclusively appears that the complaint was framed for equitable relief alone. ” (Citing Swart v. Boughton, 35 Hun, 281, and stating “ that case was followed by this court in Cody v. First Nat. Bank [63 App. Div. 199]; and in view of the very full discussion there of the exact question here presented for consideration, it is unnecessary to add to what was therein said.”)
In the Cody Case (supra) Mr. Justice Hatch, writing the unanimous opinion of this court, said: “We have examined the cases citéd by respondent, in which it is held that the complaint must be sustained if the facts as alleged entitle the plaintiff to any relief, no matter whether his prayer is addressed to the legal or equitable jurisdiction of the court; and when the facts stated in the complaint entitle the plaintiff to relief in equity a demurrer will not lie, because he has not asked for it in the form in which he is entitled to it. In each of the cases [731]*731cited under the first branch of the proposition there was an answer interposed, and in those cited under the second branch some form of equitable relief has been asked for, or the pleading was framed with a view to such relief, showing that the action was addressed to the equity jurisdiction. The cases are, therefore, clearly distinguishable from the case at bar.”
These cases were followed in Perrin v. Smith (135 App. Div. 127), where this court said: “It is the rule that where a complaint is framed in equity and upon demurrer it has been decided that no equitable cause of action is stated, the complaint may be dismissed. [Oiting cases.] But the same cases hold that when an answer had been put in, the complaint should not be dismissed if a cause of action was stated, no matter what relief was prayed.” And in Reich v. Cochran (162 App. Div. 619) this court sustained a demurrer to the complaint which was framed in equity, only equitable relief being asked upon the foregoing cases, stating: “ The distinct allegation is made that the re-entry was hostile; that it was ‘ without the consent of the plaintiff and against his protest.’ Against such a re-entry the plaintiff’s remedy at law was perfect and there was no reason for a resort to equity. He might have brought ejectment and thus reinstated himself in possession. * * * Taking the complaint as it is drawn we are unable to find that it states a sufficient cause of action in equity. The demurrer should, therefore, have been sustained.”
It is true that this was reversed in 213 New York, 416, by a vote of four to three, a majority and a minority opinion being written, but it was reversed upon the distinct ground that in the view of the majority a cause of action in equity had been stated, and in neither opinion was there a suggestion made that a demurrer would not lie if no equitable cause of action had been stated.
So that it seems to me that the judgment appealed from overruling the demurrer is erroneous upon the foregoing authorities. Independently thereof, as a matter of common sense, and in the interests of good practice and for the convenience of the court and the parties a complaint should be so framed as to present the real issue which is intended to be litigated so that it may be noticed and brought on for trial in the [732]*732proper part of the court. The plaintiff is not thrown out of court; he is simply asked to properly frame his complaint. If the defendant does not take timely steps to procure this result, but interposes an answer and waits until the trial to raise the question, an entirely different proposition is presented. Here the point is raised before answer. The rule hereinbefore laid down makes for good pleading and for good practice. The interlocutory judgment appealed from should be reversed and the demurrer sustained, with costs to the appellants in this court and at the Special Term, with leave to the respondent upon payment thereof and within twenty days after service of notice of entry of order to serve an amended complaint.
Smith and Davis, JJ., concurred; McLaughlin and Dowling, JJ., dissented.