
    Julius A. Skilton and Another, Plaintiffs, v. Benjamin N. Payne and Another, Defendants.
    (Supreme Court, New York Special Term,
    October, 1896.)
    1; Equity — Agent cannot'sue'for an accounting.
    A complaint,. which alleges that the defendants employed the plaintiffs to sell their merchandise within a certain territory, and agrééd to pay the plaintiffs a percentage on ■ sales which the defendants themselves made within the territory, and then alleges sales and an ignorance of their amount, and demands .an accounting-, is, in effect, a bill in. equity by an agent to recover his commissions, and as: such it is not maintainable
    "’S3. Same — Remedy at law.
    Whére the plaintiffs insist simply that a complaint is not maintainable in equity, and such is the fact, if is unnecessary and improper fdr them further to allege that the-plaintiffs’ have an adequate remedy ait law.
    
      3. Same — Dismissal of complaint.
    Where the plaintiffs insist that their action is maintainable in equity, propose no amendment of the complaint, and do not ask that the cause be sent to the circuit to be tried as one at law, the court has no alternative and must dismiss the complaint.
    Action for an accounting.
    J. M. Ferguson, for plaintiffs.
    Franklin Pierce, for defendants.
   Pryor, J.

Averring the employment of plaintiffs as agents for the sale of defendants’ merchandise within a designated territory,, the complaint exhibits a contract by which the defendants agree to pay plaintiffs a percentage on sales within that territory made by the defendants themselves; alleges such sales, but to what amount the plaintiffs do not know and cannot discover except from the defendants, and demands an accounting as to such sales, and judgment for any commissions that may be thus ascertained to be due to the plaintiffs. In substance and effect, therefore, the complaint is a bill in equity-and the only cause of action asserted a claim to an accounting.

At the commencement of the trial, and again on the conclusion of the plaintiffs’ case, the defendants moved to dismiss the complaint, because no right to equitable relief was apparent either by pleading or proof.

Whatever the. rule in other jurisdictions, it is the law of this state, that an action in equity for an accounting may not be prosecuted by an agent against his principal in order to the recovery of commissions for his services. Smith v. Bodine, 74 N. Y. 30, 34; Arnold v. Angell, 62 id. 508, 511; Salter v. Ham, 31 id. 321, 329; Uhlman v. Ins. Co., 109 id. 421, 427; Marvin v. Brooks, 94 id. 71, 80; 1 Wait’s Act. & Def. 179.

- Plaintiffs insist that the objection to- the action is not available to the defendants, because they omitted to aver an adequate remedy at law. The defense, however, is, not that the plaintiffs had an adequate remedy at law, but that they had no remedy in equity; and hence the plea, of which the absence is supposed .to be fatal, was neither necessary nor appropriate. Ketchum v. Depew, 81 Hun, 278, 280.

But, though, the' plaintiffs miscarried in establishing a right to equitable relief, they have shown facts sufficient to found an action at law for their commissions (Smith v. Bodine, supra; Matter of Erie, etc., Co., 90 Hun, 62), and the question is, shall the complaint be dismissed, or the action, be retained for a trial by jury?

The plaintiffs propose no amendment of the complaint, nor ask that the cause be sent to circuit. They stand' exclusively upon their claim to relief in equity; and that failing them, I have no alternative but to dismiss the complaint. Bradley v. Aldrich, 40 N. Y. 504; Ketchum v. Depew, 81 Hun, 278; Hawes v. Dobbs, 137 N. Y. 465, 470; Arnold v. Angel, 62 id. 508; Dudley v. Congregation, etc., 138 id. 451, 460; Beck v. Allison, 56 id. 366, 373.

Complaint dismissed, with costs, but without' prejudice to an action at law.

Complaint dismissed, with costs.  