
    Charles L. Rowland, Resp’t, v. Thomas F. Rowland, App’lt. 
    
    
      (Court of Appeals,
    
    
      Filed March 6, 1894.)
    
    1. Accounting—Right To.
    Where the parties, in their verified pleadings, assert that the compensation or interest of the plaintiff was to be a fixed weekly sum and a percentage of the net profits of the business, plaintiff is entitled to an accounting, unless concluded by payment or discharge.
    3. Reference—Compulsory.
    Where an accounting will involve the examination of many transactions and items, and no difficult questions of law, the case is referable by order of the court.
    3. Same—Settlement.
    The fact that an alleged settlement has been procured by fraud does not affect the jurisdiction of the court to refer the case.
    Appeal from order of the general term of the supreme court in the second judicial department, made February 15th, 1894, which affirmed an order of special term granting a motion for a reference and appointing a referee.
    The complaint in this action alleged that plaintiff and defendants were associated in business, under an agreement in the nature of a general partnership or quasi partnership; that plaintiff was to draw thirty dollars per week and to be also entitled to a percentage of the net profits, which it was agreed should be two per cent, for the first three years, four per cent, for the fourth and five per cent, for the balance of the period; that statements of the profits, which were not intended to be final, were made from time to time, and that a settlement was made which was induced by the fraudulent representations of defendant. Plaintiff prayed for an accounting and judgment for such sum as he might appear to be entitled to and for such other and further relief ás he might in equity be entitled to. The answer alleged that the relation between defendant and plaintiff was that of employer and employee, and that plaintiff’s compensation was to be a fixed weekly sum and a percentage of the profits, but not the same as was alleged in the complaint.
    
      John L. Hill, for app’lt; LJdipard P. Lyon, for resp’t.
    
      
       Affirming 57 St. Rep.
    
   Andrews, Ch. J.

Whether the relation between the parties was “ in the-nature of a general partnership or quasi partnership," as alleged in the complaint, or was that of employer and employee, as alleged in the answer, will not probably be a question of much importance in the determination of the controversy. The real issue is as to the amount which the plaintiff was to receive in addition to a specific sum per week out of the net profits, and whether the alleged settlement of the plaintiff’s claim was procured by the fraudulent representations of the defendant. Both, parties in their verified pleadings assert that the compensation or interest of the plaintiff was to be a fixed weekly sum and a percentage of thé net profits of the business. They disagree as to the amount. In either view of the relation the plaintiff has a right to demand an accounting to ascertain the sum to which he is entitled, unless concluded by payment or discharge.

The facts presented to the court upon the application for the order of reference tended to show that the accounting would involve the examination of many transactions and items, and that ■no difficult question of law was involved. If the action is to be regarded as equitable, which is the claim made by the defendant, it was referable by order of the court under § 1013 of the Code of Civil Procedure. In equity actions the right of trial by jury never existed, and no constitutional right is involved in a compulsory reference of equity actions. Camp v. Ingersoll, 86 N. Y., 433; Thayer v. McNaughton, 117 id., 111; 26 St. Rep., 843. If the action was legal and not equitable, which is the claim of the plaintiff, then the action being upon contract was, under the circumstances shown, referable.

The allegation in the complaint, made apparently in anticipation of the defense of accord and satisfaction, that an alleged settlement had been procured by fraud, did not affect the jurisdiction of the court to refer the case. It showed the right of the plaintiff to have an accounting, notwithstanding such settlement. People v. Wood, 121 N. Y., 522; 31 St. Rep., 860, and cases cited; King v. Barnes, 109 N. Y., 267-290; 15 St. Rep., 52.

The order should be affirmed.

All concur.

Order affirmed.  