
    Frederick J. Gillespie, Respondent, v. George L. Montgomery and Henry Bischoff, Appellants.
    
      Complaint to recover one-half the profits of a business under an agreement for the use of plaintiff’s services and, name — not demurrable because it aslcs for an accounting and receiver — the demand for equitable relief regarded as surplusage ■ —its failure to allege the use of plaintiff’s name.
    
    The complaint in an action alleged that the defendants were copartners; that, in consideration of the plaintiff giving his services and allowing his name to be used for the purpose of raising the sum Of $31,600 for use in the business, the defendants promised and agreed to give him an equal share in the profits thereof; that the plaintiff superintended the defendants’ business and acted for them from August 15, 1903, until February 31, 1903; that the plaintiff’s share of the copartnership profits for such period was $5,000 or more which was unpaid; that the defendants had failed or refused to account for such share of the profits, and that an accounting was necessary to determine the true amount due and payable to the plaintiff.
    The plaintiff asked for an accounting and. for the appointment of a receiver; also “ that said defendants may be compelled to pay said plaintiff the said sum of five thousand ($5,000) dollars, or such sum as may be due him as his share of the profits aforesaid, and that plaintiff have such other and further relief as may be just and equitable.”
    
      Held, that the complaint was not demurrable on the ground that it did not state facts sufficient to constitute a cause of action;
    That the facts stated entitled the plaintiff to some form of legal relief and that the averments seeking equitable relief might be regarded as surplusage;
    That while there was force in the criticism that the plaintiff had not sufficiently alleged that he allowed his name to be used in raising the sum of $31,600, such criticism, even if sound, was not sufficient to support the demurrer, as it could not be assumed that the contract was entire in the sense that failure to permit the use of the plaintiff’s name defeated his right to any share in the profits, although he performed services for the defendants.
    Appeal by the defendants, George L. Montgomery and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on 'the 25th day of June, 1903, upon the decision of the court, rendered after a'trial at the Kings County Special Term, overruling the defendants’ demurrer to the plaintiff’s complaint.
    
      Edward H. M. Roehr, for the appellants.
    
      William Hughes, for the respondent.
   Jenks, J.:

. The defendants demur that the complaint does not state facts sufficient to constitute a cause of action. . The position of the learned counsel for the appellants is that the plaintiff seeks equitable relief to which he is not entitled, and that a complaint in an action at law is made to the equitable side of the court.

Leggett v. Stevens (77 App. Div. 612) holds that if the complaint state a cause of action of which some court has cognizance, a demurrer that the complaint does not state facts sufficient to constitute a cause of action, does not technically raise the question whether the equity branch has jurisdiction, but that it can only be raised under the second ground specified in section 488 of the Code of Civil Procedure. . '

In Hotel Register Co. v. Osborne (84 App. Div. 307) the court states the general rule that if the facts show; that the plaintiff.is entitled either to equitable or to legal relief, the complaint is not demurrable upon the ground stated in the demurrer, citing Middleton v. Ames (37 App, Div. 510) and Lester v. Seilliere (50 id. 239). Abbey v. Wheeler (170 N. Y. 122, 127). holds that if the facts alleged in the complaint justify legal or equitable recovery, a demurrer upon the ground stated in this case is not well interposed, although the pleading may be open to correction by motion or otherwise.

We must first ascertain whether the facts alleged, if taken as facts, state any cause of action. (Sage v. Culver, 147 N. Y. 241.) The plaintiff complains that the defendants were copartners in businéss as brokers and money lenders, who agreed to pay to the plaintiff for services to the copartnership an. equal share of their .profits.

. The plaintiff superintended their business and acted for them from August 15, 1902, until February 21, 1903. Plaintiff’s share of such copartnership profits for such period is $5,000 or more, which is unpaid. The defendants have failed or refused to account therefor, I think that the facts stated establish plaintiff’s right to some form of legal relief.

But the point of the learned counsel for the appellants is that the plaintiff also pleads that an accounting is necessary to determine the true amount due and payable, and that he prays judgment for the accounting and for a receiver. But the plaintiff also prays that said defendants may be compelled to pay said plaintiff the said sum of five thousand ($5,000) dollars or such sum as may be due him as his share of the profits aforesaid, and that- plaintiff have such other and further relief as may be just and equitable.” The authorities cited by the learned counsel for the appellants may be discriminated. Black v. Vanderbilt (70 App. Div. 16) is principally relied upon. In that case the court states that no legal redress was demanded, and that it consequently appears that the complaint was framed for equitable relief alone. This statement is borne out by the prayer of the pleader in that case. The court cites Swart v. Boughton (35 Hun, 2.87), and quotes therefrom: “ Where all of the allegations of the complaint are made for the purpose of procuring equitable relief, and where, equitable relief alone is asked for, the complaint cannot be sustained for legal redress where no answer has been interposed.” The court also cites Cody v. First Nat. Bank (63 App. Div. 199). This case presents the converse of Swart's Case (supra), for the sole demand was for the specific relief of money damages, and the complaint was framed directly for such prayer. And so the decision is based upon the ground that only legal redress was demanded. The appellants also cite Kelly v. Downing (42 N. Y. 71). In that case the court, construing section 275 of the Code of Procedure, say: It was not the object of this section to aid a plaintiff who had insufficiently stated the cause of action upon which he seeks judgment, btit simply to aid him if his complaint is adequate for the judgment he asks, except his prayer for relief. In this case the complaint states but one cause of action, and that one in equity. * * * There was nothing in the whole framework of the complaint, nor in the prayer for relief that would lead Bailey to infer that a judgment would or could be taken against him upon the note.” So far as O'Brien v. Fitzgerald (143 N. Y. 377) is pertinent, it but holds that where the facts pleaded are ambiguous, so as to support legal action or equitable, the relief asked is the necessary because the sole solution of the ambiguity. In Bateman, v. Straus (86 App. Div. 540) the question before this court was whether upon the facts pleaded an action for specific performance of a contract of chattel property would lie, and we held that inasmuch as the plaintiff did not plead directly or by inference that he had nó adequate remedy at law the action would not lie.

The averments that seek equitable relief may be regarded as surplusage. (Hackett v. Equitable Life Assurance Soc., 50 App. Div. 266, 272.) Without them there is- good cause of action at law sufficiently well stated to prevail against this demurrer, and there is a specific demand in the prayer for relief for money, namely, $5,000. If, in addition thereto, the plaintiff • prays for other specific or general relief, to which he is not entitled, he is not, therefore, to be dismissed by the court. (Wetmore v. Porter, 92 N. Y. 76; Hotel Register Co. v. Osborne, supra ; Mitchell v. Thorne, 134 N. Y. 536.)

The learned counsel for the appellants also insists that the pleading is bad in that the plaintiff has not pleaded performance of the condition precedent. The pleader states that in consideration of the plaintiff giving his services and allowing his name to be used in raising the sum of $21,600 for the purpose of said business, the ¡said defendants promised and agreed to give to him an equal, share in i;he profits thereof while he continued to act and perform services on behalf of said copartnership business, and that the said plaintiff continued to superintend the said business and act on behalf of the ■said partners therein from the said 15tli day of August, 1902, until the 21st day of February, 1903. The criticism is that the pleader has not sufficiently alleged that the plaintiff did allow his name to be used in raising the sum of $21,600. I think that there is -force in the criticism, but even if it be sound, it is not enough to support the demurrer. It cannot be assumed that the contract was entire in the sense that failure to permit the use of the plaintiff’s name -defeated his right to any share in the profits, although he performed services and acted for the defendants. The question is whether, upon the facts stated, the plaintiff is entitled to any relief whatever. (Strubbe v. Kings County Trust Co., 60 App. Div. 548, 550; affd., 169 N. Y. 603; Jaques v. Morris, 2 E. D. Smith, 639, 643; Price v. Brown, 10 Abb. N. C. 67.) Wp cannot say that he is not.

The interlocutory judgment should be affirmed, with costs.

All concurred.

Interlocutory judgment affirmed, with costs.  