Louda v. Revillon — 99 A.D. 431

Majority

p. 431

Francis Louda, Appellant, v. Theodore Revillon and Others, Respondents.

Headnote

Examination of a defendant before trial—not ordered in an action in equity to ascertain the condition of an account demanded in the complaint.

"Where the relief demanded in a complaint is simply that the defendants be compelled to account to the plaintiff for moneys due to the latter under a contract of employment, and that judgment be entered in favor of the plaintiff for the amount found to be due to him on such accounting, the plaintiff is not entitled to examine one of the defendants before trial in order to ascertain the condition of the account; such an examination is unnecessary, as if upon the trial it appears that the plaintiff is entitled to an accounting the court will direct an interlocutory judgment requiring the defendants to account.

p. 432

Appeal by the plaintiff, Francis Leuda, 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 23d day of September, 1904, granting the defendants’ motion to vacate an order for the examination of one of the defendants.

Jacob Marks, for the appellant.

Emanuel Blumenstiel, for the respondents.

This action cannot be sustained as an action at law for the recovery of a sum of money alleged to be due to the plaintiff by reason of his employment by the defendants. There is no allegation that plaintiff sustained damages by the breach of the contract, nor that, under plaintiff’s agreement with the defendants, the plaintiff was entitled to recover a sum of money for which the action is brought. The relief asked is that the defendants be compelled to account to the plaintiff for the money due the plaintiff under the contract hereinbefore mentioned, and that the judgment for the amount found to be due the plaintiff on such an accounting be entered in favor of the plaintiff. Admitting all of the allegations of the complaint, it would be impossible to enter judgment for a sum of money against the defendant until after the accounting which the plaintiff demands. The cause of action being in equity for an accounting, it was quite unnecessary to examine one of the defendants before trial to ascertain the condition of the account. If, upon the trial, the plaintiff would be entitled to an accounting, the court at Special Term could direct an interlocutory judgment requiring the defendants to account when the accounting could be had. It is unnecessary upon this motion to determine whether or not the action for an -accounting could be maintained. If the complaint had alleged that the profits of the business were an amount named, and that under his contract he was entitled to recover fifteen per cent of that amount and had asked judgment therefor, the action would then be at law for the recovery of the amount stated, but as there is no allegation in the complaint from which it would follow that a sum of money is due the plaintiff, there is no basis for a recovery of more than nominal damages in an action at law.

p. 433

The court was, therefore, right in vacating the order for the examination of the defendant, and the order must be affirmed, with ten dollars costs and disbursements.

O’Brien, McLaughlin and Hatch, JJ., concurred; Van Brunt, P. J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.