Ltd. v. John C. Seager ComPany — 118 A.D. 697

Majority

p. 697

Prince Line, Ltd., Respondent, v. The John C. Seager Company, Appellant, Impleaded with Corn Exchange Bank, Defendant.

First Department,

April 5, 1907.

Headnote

Practice—main issues in suit "in equity determined by court before,

reference ordered.

In an action in equity by a principal against his agent for an accounting when there is an issue as to the basis of the agent’s compensation, the trial of the main issue should be had before the court before the case is sent to a referee. If on such trial it appear that an accounting is pecessary, the reference should, be provided for in the interlocutory decree,

p. 698

Appeal by the defendant, The John C. Seager Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of September, 1906, referring the issues herein to a referee.

Lorenzo Ullo of counsel [ Ullo, Ruebsamen & Yuzzolino, attorneys], for the appellants.

J. Parker Kirlin [John M. Woolsey and Orville C. Sanborn with him on the brief], for the respondent.

This is an action in equity to adjudge that certain funds on deposit with the defendant bank in the name of and to the- credit of the defendant John C. Seager Company be. adjudged and determined to be the funds of plaintiff and to compel an accounting by the defendant company of the moneys received or collected by it in its capacity as agent for the plaintiff.

From an examination of the papers in the case it appears that the real controversy between the. plaintiff and the defendant company, its admitted agent, is as to the .basis of the commissions to which the defendant is entitled under its agreement of agency. The fiduciary relation is admitted, the obligation to account is admitted and a balance due and owing to the plaintiff is admitted by the defendant to be in its hands or under its control. The terms of the agreement being once established,, and the basis upon which commissions are to be allowed being ascertained, it is quite possible that there will be no necessity for an accounting. Under such circumstances it is the rule in equitable actions that a trial of the main issue should, first be had before the court, and this issue being disposed of, and it then appearing that an accounting is necessary, it may be provided for in the interlocutory decree.

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

Patterson, P. J,, Ingraham, Laughlin and Sgorr, JJ,, concurred.

- Order reversed) with ten dollars cgsts ■ and digblll'Sfíjí'ents, apd jtnQPm} denied, with- ten dqUat-g costs.