Prince Line, Ltd. v. John C. Seager Co. — 103 N.Y.S. 677

Majority

p. 677

(118 App. Div. 697)

PRINCE LINE, Limited, v. JOHN C. SEAGER CO.

(Supreme Court, Appellate Division. Eirst Department.

April 5, 1907.)

Headnote

Equity—Reference—Account—Hearing and Interlocutory Decree.

In an equitable action between a principal and agent, where the matter in issue is the basis oí commissions to which the agent is entitled under its agreement oí agency, and the íacts of a fiduciary relation and an obligation to account and that a balance owing the agent are all admitted, a trial of the main issue should first be had before the court, and then, if an accounting is necessary, it may be provided for in the interlocutory decree.

Appeal from Special Term, New York County.

Action by the Prince Line, Limited, against the John C. Seager Company, impleaded with the Corn Exchange Bank. From an order

p. 678

for a compulsory reference, defendant Seager Company appeals. Order reversed, and motion for accounting denied.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGH-LIN, CLARKE, and SCOTT, JJ.

Ullo, Ruebsamen & Yuzzoline (Lorenzo Ullo, of counsel), for -appellant.

J. Parker Kirlin (John M. Woolsey and Orville C. Sanborn, on the brief), for 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 $10 costs and disbursements, and the motion denied, with $10 costs. All concur.