
    Dora Schulsinger, Appellant, v. Carrie Blau and Stephen Mester, Respondents.
    
      Dismissal of a complaint unless it be amended — fhe plaintiff’s application for leave ■ to amend and his failure to do so do not prevent his appealing from the dismissal— the failure to demand equitable relief does not preclude the plaintiff from insisting, that the suit is in equity.
    
    Where the judge presiding at the trial of an action makes an-order dismissing the complaint upon'the ground that it does not state facts sufficient to constitute a, cause of action, unless the plaintiff, who moves for leave to amend, shall serve an amended complaint within a specified time, and the plaintiff files an exception to the order so far as it directs a dismissal of the complaint, his act in obtaining leave, and his subsequent failiire. to avail himself of the opportunity to serve an amended complaint, does not estop him from appealing from a judgment dismissing the complaint entered upon the order.
    The complaint in an action alleged that the plaintiff and the defendants had been partners and that under the 'agreement of partnership the plaintiff was entitled to fifteen per cent of the profits; that the partnership business had been discontinued arid that the actual profits during its continuance were $6,317.69 and that the plaintiff had demanded payment from the defendants of her share of the profits, aggregating $933.65. The case was moved for trial at Special Termas a suit in equity and the complaint therein was dismissed on the ground that it did not state facts sufficient to constitute a cause of action.
    
      Held, that although the complaint failed to state a cause of action at law, in that it did not allege that the amount of profits was agreed upon, or that an account was stated showing the balance due to the plaintiff from" the defendants, the complaint did allege facts showing that the plaintiff was entitled to an accounting, and that the court should have decreed this relief notwithstanding the fact that the plaintiff had neglected to demand the same in her complaint. .
    Patterson and O’Brien, JJ., dissented.
    
      Appeal by the plaintiff, Dora Schulsinger, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Hew York on the 21st day of February, 1903, upon an order, made at the Hew York Special Term and entered in said clerk’s office on the 30th day of January, 1903, dismissing the plaintiff’s complaint, and also from an order entered in said clerk’s office on the 12th day of January, 1903, dismissing the plaintiff’s complaint unless amended in compliance with the terms therein contained.
    
      Abraham H. Sarasohn, for the appellant.
    
      'Sidney S. Meyers, for the respondents.
   Laughlin, J.:

The first order was made at the Special Term for the trial of issues of fact. It recites that upon the case being moved for trial the defendants moved for a dismissal of the complaint upon the ground that it did not state facts sufficient to constitute a cause of action; that plaintiff’s counsel then moved to amend, and the motion was granted upon condition that she pay defendants, within ten days from service of the order, the taxable costs including a trial fee but excluding term fees, and serve a copy of the proposed amended complaint, the defendants then to have fifteen days to answer and the case to go back on the general calendar, and it provided that, upon plaintiff’s failure to comply with the terms imposed, the complaint be dismissed on the motion made by defendants on the ground that the complaint as it stands does not state a cause of action.” The second order recites the substance of the first that the plaintiff failed to comply with the terms imposed within the time prescribed, and directed the dismissal of the complaint, with costs.

The respondents contend that the plaintiff is precluded from reviewing the judgment on the merits on account of obtaining leave to amend and not availing herself of the privilege granted. This contention is not tenable. There is no estoppel. The plaintiff formally filed an exception to.so.much of each order as directed a dismissal. The respondents have in no manner been prejudiced. The dismissal as finally made leaves the parties precisely where they would have been had the complaint been dismissed when the action was moved for trial. By granting leave to amend the court merely afforded the plaintiff an opportunity to amend if she were so advised. (Yaple v. N. Y., Ontario & Western R. Co., 57 App. Div. 265.) Had she accepted the privilege granted upon the terms imposed and amended her complaint, of course' she would be precluded ■ from reviewing the original order, but this she did not do. She declined to accept those terms and filed exceptions to the orders — the only effect of the exceptions was to emphasize her intention not to acquiesce in the orders — and appealed from the- judgment. There has, therefore, been no waiver.

The important question raised by the appeal is whether the complaint states facts sufficient to constitute a cause of action. It alleges the making of an agreement between the plaintiff and defendants by which they became partners for the term - of five years from the 12th day of January, 19Q0, under the. firm name of S. Hester & Ob,, as manufacturers of and general dealers in furs and furrier articles and in buying and selling certain merchandise; that the defendant Carrie Blau was to advance the stock of furs then owned by her of the value of $5,000; that the defendant Hester was to contribute $500 in cash; that plaintiff was to contribute her services; that the parties were to bear all expenses and losses equally, and the plaintiff was to receive fifteen per cent of the profits, the defendant Hester thirty-eight per cent and the defendant Blau forty-seven per cent; that the plaintiff was "to be entitled to draw a salary, of seven,dollars per week, which Was to be charged against the expense account of the business; that they entered upon the business of the firm and carried on business in accordance with the copartnership articles until the 23d day of Hareh, 1902, when the said business was discontinued and the said parties hereto have ceased to carry on the business under said' agreement; ” that the actual profits during the continuance of the copartnership business were $6,217.69, and that the plaintiff has demanded payment from the defendants of her share of the said profits, aggregating $932.65. The plaintiff demands judgment for $932.65.

We agree with the respondents’ contention that the complaint fails to state a cause of action at law, in that there is no allegation that the amount of profits was agreed upon or of an account stated showing the balance owing" to the plaintiff from the defendants. (Emery v. Pease, 20 N. Y. 62.) As an action at law, therefore, the complaint could not he sustained; but the case was moved at Special Term as a suit in equity, not at Trial Term as an action at law. It is true that no equitable relief is demanded; but the mere fact that the complaint demands judgment for a sum of money only does not necessarily stamp the action as one at law. (Wetmore v. Porter, 92 N. Y. 76 ; Murtha v. Curley, 90 id. 372; Lester v. Seilliere, 50 App. Div. 239 ; Parker v. Pullman & Co., 36 id. 208.) It is manifest that the plaintiff is entitled to some relief upon the facts stated; and it is clear that without amending her complaint she woiild not be entitled to legal relief. A partnership and profits which have not been accounted for are alleged. Although the plaintiff specifies the amount of the profits, she does not allege that there has been an accounting or that the parties have agreed upon the amount of profits, and, therefore, she cannot, on these allegations, recover at law. The partnership having existed and conducted business for a period, resulting in profits which have not been divided and the parties not having agreed upon the amount of profits, it is clear that the plaintiff is entitled to an accounting and this should have been decreed notwithstanding her omission to pray for an accounting. (Emery v. Pease, supra ; Gerding v. Funk, 48 App. Div. 603, 607; affd., 169 N. Y. 572; Squiers v. Thompson, 73 App. Div. 552; affd., 172 N. Y. 652.)

The complaint does not expressly allege that the partnership has been dissolved, but such, we think, is the effect of its allegations ; and in any event it appears that the business for which it was organized has long since been abandoned; consequently the partners are entitled to an accounting. (Spears v. Willis, 151 N. Y. 449; Mackey v. Auer, 8 Hun, 182; Sanger v. French, 157 N. Y. 235; Foote v. Ffoulke, 55 App. Div. 617.)

It follows, therefore, that the judgment'should be reversed and new trial ordered, with costs to appellant to abide the event, and the case restored to the Special Term calendar for trial.

McLaughlin and Hatch, JJ., concurred; Patterson and O’Brien, JJ., dissented.

Judgment reversed, new trial ordered, costs to appellant to abide event.  