
    The Empire State Telephone and Telegraph Company, Resp’t, v. Frank A. Bickford, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed April 17, 1894.)
    
    1. Reference—Equity.
    An action to call an agent to account for his conduct, though it may he cognizable in equity, is not necessarily referable.
    •2. Same—Wrongful act of agent.
    Where a recovery is sought for the expense the principal was put to in equipping a new exchange, caused by the wrongful act of the agent in, taking Ike renewal lease in his own name, it is not a matter of account or of equitable cognizance, but renders the whole case an action at law and not one in equity.
    Appeal from an order of the general term of the supreme court in the fifth judicial department, made October 3, 1893, which affirmed an order of special term appointing a referee to hear and determine the issues in this action.
    The nature of the action and the facts, so far as material, are stated in the opinion.
    
      T. M Courtney, for app’lt; Underwood & Storhe, for resp’t.
    
      
       Reversing 55 St. Rep. 243.
    
   Per Curiam.

The plaintiff characterizes his action as one brought for an accounting by defendant in respect to his transactions as agent of the plaintiff in the management of its Cortland exchange, and the complaint specifies the particulars in which such accounting is asked, as follows:

(1) In respect to receipts and disbursements by defendant of money belonging to plaintiff between the years 1884 and 1893.

(2) In respect to the conversion of certain personal property belonging to plaintiff and intrusted to the possession of the defendant as part of the necessary machinery of the work to be done by defendant.

(3) In respect to the amount of revenue lost to plaintiff by reason of defendant’s neglect of plaintiff’s business, and by reason of defendant’s attempts to establish a competing business at Cortland while in plaintiff’s employ.

(4) In respect to the proportion of the cost of equipment of plaintiff’s new exchange at Cortland, made necessary by defendant’s wrongful acts and omissions properly chargeable to defendant. Among such is the alleged procurement of a renewal lease in his own name of the premises formerly, leased to plaintiff.

. The first item is a proper subject for an accounting, and possibly the second, treating it as misconduct of an agent in relation to property intrusted to him by his principal by reason of'which the whole or part of the value of such property has been lost to-the principal. Such second item is not, however, on that ground necessarily referable. An action to call an agent to account for his conduct may be cognizable in equity without being also and necessarily referable. If it have to do with conduct as to property intrusted to defendant as agent, equity might have jurisdiction without the action itself being also referable. But the other two items of alleged damage do not constitute an account as that word is used in the statute. They involve an inquiry as to damages which plaintiff has sustained by reason of alleged misconduct by defendant while its agent. Such misconduct was not in regard to property of the plaintiff, but on account of defendant’s alleged negligence in attending to his duties, viz., a neglect of plaintiff’s business and his wrongful acts in attempting to establish a competing business.

A recovery is also sought for the expense plaintiff has been put to in equipping its new exchange, caused by the wrongful act of the defendant in taking the lease as above stated.

These are not matters of account and are not properly cognizable in an equitable action. They are not connected with the receipt or disbursement of money of the principal, nor with any fraudulent or other omission of the defendant to charge himself with moneys received by him, or paid out by him, and wrongfully charged to his principal.

We think the chief part of the action is of a common law nature, and it should be treated as a whole and as charging but one cause of action, and that an action at law and not one in equity. After the issues at law are tried, if it then becomes necessary to have an accounting as to the receipts and disbursements, a reference can be ordered to take it.

The questions as to whether the defendant has been guilty of any wrongful acts, and the amount of damages (if any) caused thereby under the second, third and fourth items above stated, and whether there has been a settlement and release or not, should be tried by a jury, unless both parties consent to some other mode of trial.

The order of reference should, therefore, be reversed, with costs to defendant in all courts, and the motion for a reference denied, with costs.

All concur.

Ordered accordingly.  