
    John Good, Resp’t, v. William S. Daland et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889.)
    
    Pleading—Complaint—Causes of action—Joinder, of parties.
    The complaint alleged an agreement between plaintiff and defendant,, the latter acting in behalf of a corporation, that the corporation should pay a certain percentage of the receipts derived from the sales of the products of certain patents owned by plaintiff; that periodical statements of the sales should he rendered; that on failure to pay, defendant could sue the corporation. The complaint further avers a default in the per-6 formance of the agreement on defendant’s part, and asks for an accounting, for a judgment against defendant, and for other relief, etc. Reid, that hut one cause of action is stated. As defendant D. was interested in the accounting by the corporation, there was no misjoinder of parties.
    Appeal from an interlocutory judgment overruling demurrers of the respective defendants to the complaint.
    The demurrer of each defendant states the same alleged grounds of objection:
    
      First. That causes of action have been improperly united.
    
      
      Second. That the complaint does not state facts sufficient to constitute a cause of action.
    Each demurrer admits, among other things, these allegations of the complaint, namely: that the defendant, William S. Daland, being authorized by the defendant, the Tucker & Carter Cordage Company, entered into an agreement in writing with the plaintiff, whereby, for considerations appearing in such agreement, Daland agreed that certain periodical statements of sales should be rendered by his co-defendant, the Tucker & Carter Cordage Company, to the plaintiff, and a certain percentage paid by the company to him; and whereby it was mutually agreed that such agreement might, on certain conditions, be terminated by the defendant Daland at his election, by certain written notice to plaintiff; and whereby the defendant Daland agreed that if his co-defendant, the Tucker & Carter Cordage Company made default in rendering such periodical statement, or in payment of such percentage, he, Daland, should promptly bring suit against said co-defendant and “use all diligence in prosecuting an action for the collection thereof; ” that plaintiff has complied in all respects with those terms of the agreement which, on his part, were to be performed, and that no notice seeking to terminate the agreement was ever given by defendant Daland; that such sales have been made by the Tucker & Carter Cordage Company; that no such statement thereof has been rendered or payment made; that plaintiff is ignorant of the amount of such sales, and that the defendant Daland, at the suggestion of the cofendant, the Tucker & Carter Cordage Company, has refused to comply with such provision of the agreement requiring him to bring suit against his co-defendants, and use all diligence in prosecuting an action for the collection of such percentage from them, although requested by the plaintiff to comply with these provisions of the agreement.
    The relief asked by plaintiff was, among other things, that the rights of plaintiff and the liabilities of defendants might be established and an accounting be had of the sales in question, and for certain judgment thereupon against the defendants, as well as for such further, other or different relief as might be just.
    
      Charles L. Atterbury, for app’lts; Albert G. MacDonald, for resp’t.
   Baeirard, P. J.

There is but one cause of action stated in the complaint. Daland agreed with Good that the Tucker & Carter Cordage Company should pay one cent per pound on all cord, rope and twine offered for sale and used by this company, during the time it had the use of the plaintiff’s patent rights for machinery, and manufacturing the same.

The defendant Daland further agreed that the defendant company would make monthly statements of the quail ty of fiber worked, sold and delivered during the preceding month. The agreement was made by Daland with Good^ as his right of the defending company. The complaint avers a default in each respect, although the defendant had worked up “many hundred thousand pounds” into cords, and sold and delivered the same. For the purpose of determining the sufficiency of the complaint, the other parts of the argument are immaterial.

In legal effect, the defendant company agreed to pay Gfood, and Daland agreed that the defendant company would pay, and that he could sue the other defendants for the collection of what was due. The plaintiff seeks only to enforce this contract against those who made it.

Even .if the parties are not equally entitled, or in the same legal right, they are proper parties.

There is but one transaction; both defendants have failed in duty under the agreement. There must be an accounting with the defendant company, and Daland is interested in that. There is, therefore, no misjoinder of causes of action, and none of parties.

The judgment, therefore, ought to be affirmed, with costs.

All concur.  