
    Caroline Greenfield, Respondent, v. Edgar Wilson Nye, Appellant.
    First Department,
    June 2, 1916.
    Pleading — suit for an accounting—complaint not stating cause of action — when remedy is at law rather than in equity.
    A complaint which merely states that the plaintiff and defendant entered into a written contract whereby, in consideration of a payment made by the plaintiff, the defendant agreed to give her fifty per cent of all the work in the nature of books and plays which he might turn out during the period of two years does not state a cause of action for an accounting where it does not allege that during said period the defendant turned out any work, or obtained any money or property for work done, or that he refused to deliver books or plays to the plaintiff, or that she had ever demanded such delivery.
    A mere allegation that the defendant holds money, the property of the plaintiff, which he refuses to account for or pay over, uncoupled with an allegation as to how the money came into his hands, does not show that such money was derived from or by virtue of the contract upon which the action is based.
    
      It seems, that even if such allegation should be deemed a statement of fact rather than a conclusion of law it would merely entitle the plaintiff to an action at law to recover moneys held by the defendant, and not to sue for an accounting in equity.
    Laug-hlin, J., dissented.
    Appeal by the defendant, Edgar Wilson Eye, from an order of the Supreme Court, made at the Eew York Special Term and entered in the office of the clerk of the county of Eew York on the 23d day of March, 1916, overruling his demurrer to the complaint.
    
      L. E. Warren, for the appellant.
    
      John Caldwell Myers, for the respondent.
   McLaughlin, J.:

The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and he appeals.

The complaint alleges, in substance, that on the 2d of Eovember, 1913, the parties entered into a written contract — which is annexed to and made a part of the complaint — which provided, among other things, that in consideration of the plaintiff’s paying to the defendant $5,000 he would give her fifty per cent of all the work he might turn out for two years, beginning November 2, 1913, and ending November 2, 1915; and, in addition, the amount obtained from the finished and unfinished work which he at that time had on hand, including the amount obtained from certain books and plays then in his custody; that defendant now holds in his hands a large sum of money, the property of the plaintiff, for which he refuses to account or pay over; that the plaintiff, after the execution of the contract, paid to the defendant $5,000 and has fully performed all of the agreement on her part to be performed. The judgment demanded is that an accounting be had between plaintiff and defendant, and that he be decreed to pay such sum as shall be ascertained to be due her.

I think the demurrer should have been sustained. If the plaintiff proved every fact alleged in the complaint she would not be entitled to recover. It will be observed there are no allegations in the complaint that the defendant, during the time specified, turned out any work, or obtained any money or property for work turned out; that he ever made a sale of the property specified, or refused to deliver the books or plays to the plaintiff, or that she ever demanded them. It is true there is an allegation that the defendant holds money, the property of the plaintiff, for which he refused to account or pay over, but there is no allegation as to how this money came into his hands and it cannot be inferred without appropriate allegations to that effect, that it was derived from or by virtue of the contract upon which the cause of action is predicated. Indeed, the allegation is a mere conclusion, not based upon any facts from which the court can see such conclusion is properly drawn. But if it be accepted as the statement of a fact, then the plaintiff is not entitled to maintain the action for an accounting. Her action is at law to recover the money held by the defendant, to which she is entitled.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the demurrer sustained, with ten dollars costs, with leave to the plaintiff to serve an amended complaint upon payment of such costs.

Clarke, P. J., Scott and Dowling, JJ., concurred; Laughlin, J., dissented.

Order reversed, with ten dollars costs and disbursements, and demurrer sustained, with ten dollars costs, with leave to plaintiff to serve amended complaint on payment of said costs.  