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Johnston v. Berlin

71 N.Y.S. 454 Court N.Y. Sup. Ct. English

Delivered by BLANCHARD, J.

Contents

Majority

p. 454
(35 Misc. Rep. 146.)
JOHNSTON v. BERLIN et al.
(Supreme Court, Special Term, New York County.
May, 1901.)

Headnote

1. Suit at Law.
An agent cannot sue his principal in equity for an accounting for commissions earned, but should sue at law.
2. Same—Dismissal.
Where plaintiff erroneously brings a suit in equity, but does not ask that it be retained for relief at law, it should be dismissed without prejudice.
Action by Coburn H. Johnston against Paul Berlin and others for an accounting. Complaint dismissed.
Franklin Bien, for plaintiff.
Nathan, Leventritt & Perham (Edgar M. Leventritt, of counsel), for defendants.

This action is brought to secure an accounting for certain commissions plaintiff claims to be due him from defendants, upon certain alleged sales and duplicate orders, under an agreement whereby plaintiff was employed by defendants as a salesman, and to recover the hmount ascertained by such an accounting. Defendants contend that the action is one of which equity cannot take cognizance; that the allegations of the complaint and evidence given upon the trial disclose no relationship between plaintiff and defendants, save that of salesman and employers; and that such a relation

p. 455
ship will not support an action in equity for an accounting, and that, accordingly, the action must be dismissed. This contention is sustained by the authorities. Smith v. Bodine, 74 N. Y. 30 ; Chaurant v. Maillard, 56 App. Div. 11 , 67 N. Y. Supp. 345 ; McCullough v. Pence, 85 Hun, 271 , 32 N. Y. Supp. 986 ; Skilton v. Payne, 18 Misc. Rep. 332 , 42 N. Y. Supp. 111 .

The position of the plaintiff, so far as the retention of the case for the purpose of awarding him legal relief is concerned, is precisely the same as in Skilton v. Payne, supra. Plaintiff has not asked for such retention. He stands upon his right to equitable relief, and, upon the authority of that case and the cases there cited, the complaint must be dismissed, with costs, but without prejudice to an action at law.

Complaint dismissed, with costs.

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