Middleton v. Ames

41 A.D. 498, 58 N.Y.S. 645

Opinion

Barrrett, J.:

The plaintiff moved solely upon the pleadings. We find nothing in the complaint to indicate that the trial of this action will require the examination of a long account. As the plaintiff submitted no affidavit, and as the complaint itself suggests nothing with regard to the character or extent of the account to be examined, the plaintiff failed to bring his application within section 1013 of the Code of Civil Procedure.

But, further, the compjaint shows that the trial will not require the examination of an account at all — long or short. It alleges an agreement whereby the plaintiff and one Onequi sold to the defendant certain chattels, together with the good will of the business in which these chattels were used, for the sum of $8,250. This latter sum was to be paid “ out of the proceeds of the business to be done through the property and good will hereby sold ; ” three-fifths to Onequi in weekly sums of $150, and two-fifths to the plaintiff in weekly sums of $100. Under this agreement the defendant took possession of the chattels and carried on the business for a short period. He then, it is charged, gave up the business and removed and disposed of the furniture. The complaint further alleges that the defendant received large amounts of money from the business, to a portion of which the plaintiff was entitled under the contract, but that no part thereof, “ excepting the sum of $150,” has been paid ; and that the plaintiff has demanded from the defendant an accounting respecting such moneys, which has been refused. Upon these allegations the plaintiff demands an accounting, under the agreement, and judgment for the balance found due him. It is plain that, upon these facts, he is not entitled to an accounting in equity. Nor does he need such an accounting. What he requires is simply a discovery to ascertain whether two-fifths of the proceeds of the business amounted to enough to call for the payment by the defendant of the agreed sum, or of some weekly installment thereof. The payments, it will be observed, are to be made out of the proceeds of the business, but these proceeds merely measure the defendant’s fixed obligation. The action is essentially at law to recover the price of the chattels and good will sold — such price being payable in the particular manner agreed upon. What the plaintiff is really looking for is proof to show that the agreed price is now payable in whole or in part under the terms of the contract. Thus, clearly, the case on this head, stated in the complaint, is not referable. If, on the other hand, the defendant has given up the business and the plaintiff relies upon that feature of the complaint, claiming that the defendant has thus put it out of his power to realize the agreed sum, still less is the case a referable one.

In no aspect of the complaint is the action compulsorily referable.

The order appealed from should, therefore, be reversed, with ten dollars costs, and the motion for a reference denied, with ten dollars costs.

Rumsey, Ingraham and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. .