Summary
In Voegtlin v. Bowdoin, 54 Misc. 254, this court had under consideration a somewhat similar contract, and the court said: "This agreement constituted the parties to it partners, and their rights and liabilities are to be determined upon the same principles as are applied by courts of equity to partnership transactions.
Summary of this case from Lasky v. CoverdaleOpinion
May, 1907.
Harris Towne (Fancher Nicoll, of counsel), for appellant.
John Holden, for respondent.
The complaint alleges that the defendant being the owner of a play called "Neptune's Brides," and a patent on an air reservoir, which makes the play possible, entered into an agreement with the plaintiff and one Temple, by which the defendant agreed "to give to each of the parties of the second part a one-third interest or ownership in both play and patent, dating from the day the patent is secured and to continue thereafter forever," and "that, upon the securing of a contract satisfactory to the party of the first part, they will, thereafter, as joint owners, share equally, one-third to each, all receipts, expenses and profits in connection with the development of plays and the use of the patent air reservoirs." The contract is set forth in full in the complaint and is followed by an allegation that the defendant had received $2,500 for the use of such play and patent, of which sum he paid to the plaintiff the sum of $416.66, leaving due this plaintiff the sum of four hundred and sixteen 66/100 dollars ($416.66) under the said contract." To this complaint the defendant demurred upon the ground, among others, that the Municipal Court was without jurisdiction of the action. The trial justice overruled the demurrer, giving the defendant the usual leave to plead over. Section 2 of the Municipal Court Act provides that "Said court shall not have any equity jurisdiction." The parties were engaged in a joint venture and were to participate in the division of the profits and were to share the expenses of their joint enterprise. This agreement constituted the parties to it partners, and their rights and liabilities are to be determined upon the same principles as are applied by courts of equity to partnership transactions. Wilcox v. Pratt, 125 N.Y. 688; Mitchell v. Tonkin, 109 A.D. 165; Jones v. Walker, 51 Misc. 624. A common-law action between partners "will not lie until after a full accounting, balance struck and express promise to pay." Mitchell v. Tonkin, supra; Belanger v. Dana, 52 Hun, 39, 43. No such situation as this existed between the parties to the contract alleged in the complaint. In order to determine the amount due from one of the parties to the other, it is necessary not only to determine the amount of money received, but the expenses incurred, and to apportion the amount due to each after such an accounting is had. The cases of Ferguson v. Baker, 116 N.Y. 257; Lord v. Hull, 178 id. 9, and Head v. King, 33 Misc. 89, upon which the learned trial justice relied, are not contrary to the views here expressed. In Ferguson v. Baker, supra, the partnership between the parties had been dissolved, and the plaintiff sued to recover one-half of the sum of money collected by the defendant upon bills due to the firm and unpaid at the time of its dissolution, and all the partnership affairs had been adjusted. The action in that case was distinct from the partnership accounts and did not involve their consideration. Lord v. Hull, supra, was a case where a court of equity in an action for an accounting between partners refused to interfere in matters of internal regulation of the business, where a dissolution of the partnership was not sought. In Head v. King, supra, the debt for which one partner sued another had been liquidated and the action required no determination as to the firm assets or liabilities. No support for the judgment appealed from can be derived from these authorities. The cause of action set forth in the complaint calls for the exercise of equitable powers which the Municipal Court has no authority to exert.
Judgment reversed, with costs to the appellant, and demurrer sustained, with costs in the court below, and complaint dismissed.
GILDERSLEEVE and BRADY, JJ., concur.
Judgment reversed, with costs to appellant, and demurrer sustained, with costs in court below, and complaint dismissed.