
    John L. McCullough, Resp’t, v. Harvey L. Pence, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 15, 1895.)
    
    Judgment—Demurrer.
    A decision overruling a demurrer to the complaint with leave to answer is not res adjudícala, where the defendant pleads over, but he may raise any objections to the maintenance of the action which he does not waive by answering.
    2. Accounting—What necessary.
    In order to justify a resort to a court of equity or a decree for an accounting, there must be some trust or fiduciary relation between the parties ; the existence of a bare agency is not sufficient.
    Appeal from an interlocutory judgment, ordering dn accounting, and from a filial judgment on the referee’s report.
    
      John H. Parsons, for app’lt; William C. Reddy, for resp’t.
   Van Brunt, P. J.

The complaint in this action alleged that the plaintiff was the owner of a one-sixth interest or share in certain letters patent, and that defendant had the right of sale under said letters patent upon payment of certain royalties, one sixth of which belonged to plaintiff, and that defendant had made large -sales of patented articles, and had made a payment to plaintiff on account of his interest; that the amount of sales was unknown to plaintiff, but that the plaintiff has-been informed and believed that they have been very extensive; that an account had been requested, but the defendant had refused to so account, and had not made any account since a date in said complaint mentioned. Judgment is prayed for an accounting and for judgment for amount found due. The defendant demurred to this complaint upon the ground of defect of parties, improper union of causes of action, and that the complaint did not state facts sufficient to constitute a cause of action. That demurrer was overruled, and defendant given leave to answer. The defendant availed himself of leave to answer, and answered, • denying knowledge of assignment, apd averring willingness to pay $10, which amount the royalties did not exceed. The issues thus raised came up for trial at a special term. The defendant claimed trial by jury, which being denied, the defendant moved to dismiss complaint upon the ground that it did not state any cause of action of equitable cognizance, which motion was renewed at the close of the case. These motions being denied, and exceptions duly taken, the trial proceeded, and resulted in an interlocutory judgment referring it to a referee to take and state account. The referee reported $7.23 due at the time of the commencement of the action, and $16.29 due at the time of trial. Judgment was entered upon the referee’s report for said ■sum of $16.29 and $140.30 costs. From this judgment and the interlocutory judgment this appeal is taken.

It is urged by the appellant that the motion to dismiss com plaint should have been granted, because the facts proved did not constitute a cause of action in equity for an accounting. In reply, the respondent claims that the plaintiff's right to bring this action for an accounting was determined and became res adjudicóla on the decision of the demurrer. Several cases are cited to support this proposition, but an examination seems to show that the contrary is the rule. By answering, the defendant has withdrawn his demurrer, and it no longer properly forms any part of the record. This was distinctly held in the case of Brown v. Railroad Co., 18 N. Y. 495. The defendant, therefore, could raise any objections to the maintenance of the action which he did not waive by answering, the general ground against maintaining action being one. It is not of every action in which it is necessary to take an account that equity has jurisdiction. There must be something more than the mere right to an account. It would seem that there must be some trust or fidicuary relation between the parties in order to justify a resort to a court of equity or a decree from an accounting. Even the existence of a bare agency is not sufficient. Marvin v. Brooks, 94 N. Y. 71. In the case at bar there was not the semblance of any trust. The action is brought to enforce a mere contract obligation to pay royalties, and the only final j udgment would be a money judgment. The defendant in an action at law could have a reference to take the accounts if necessary, and, if a discovery was needed, an examination before trial was open. We think that the judgment should be reversed, and new trial ordered, with costs to appellant to abide the event.

All concur.  