Hyperlawhypertext legal database Hoisting Machinery Co. v. Scofield Engineering Co. 147 N.Y.S. 564

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Hoisting Machinery Co. v. Scofield Engineering Co.

147 N.Y.S. 564 Court N.Y. App. Div. Decision date 1914-05-15 Docket No. 5813 English

Delivered by CLARKE, J.

Contents

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p. 564
HOISTING MACHINERY CO. v. SCOFIELD ENGINEERING CO. et al.
(No. 5813.)
(Supreme Court, Appellate Division, First Department.
May 15, 1914.)

Headnote

Joint Adventubes (§ 5[1] )—Dissolution—Accounting.
In an action for a dissolution of a joint enterprise and an accounting, it is improper to enter an interlocutory judgment for an accounting before it shall have been determined that one is necessary.
[Ed. Note.—For other cases, see Joint Adventures, Cent. Dig. § 7; Dec. Dig. § 5.*]
Appeal from Special Term, New York County.
Action by the Hoisting Machinery Company against the Scofield Engineering Company and others. From an order denying its application for the issuance of a commission to take depositions, plaintiff appeals.
Reversed.
Argued before INGRAHAM, P. J., and CLARKE, SCOTT, DOW-LING, and HOTCHKISS, JJ.
Merchant, Oleana & Merchant, of New York City, for appellant.
Burlingham, Montgomery & Beecher, of New York City (Norman B. Beecher, of New York City, of counsel, and Henry D. Strack, of Brooklyn, on the brief), for respondents.

This is an action for the dissolution of a j"oint enterprise and for an accounting. The answer denies the terms of the agreement as alleged by the plaintiff, and sets up a different agreement, and asks for the dismissal of the complaint, except in so far as it asks for an accounting.

We are of the opinion that a proper case is shown for the issuance of a commission to take depositions of the proposed witnesses upon oral interrogatories, but that such testimony should be limited to the facts necessary to establish the nature, extent, and terms of the joint enterprise or undertaking and the right to an accounting; in other words, the right to an interlocutory judgment for an accounting. When the nature and extent of the accounting is established by the interlocutory judgment, it will be proper to apply for another commission to take testimony upon such accounting, if it shall appear to be necessary at that time. It is obviously improper to compel an accounting before it shall have been determined that one is necessary and the terms thereof fixed.

The order appealed from is therefore reversed, with $10 costs and disbursements to the appellants, and the motion granted to the extent indicated, with $10 costs. All concur.