
    Harry S. Boisnot, Appellant, v. William Wilson, Respondent.
    
      Reference — when a compulsory reference is proper in an action at law although there is a denial of the existence of the contract upon which the right to an account rests.
    
    The complaint in an action alleged that the plaintiff was employed by the defendant to manage a drug store under a contract by which the defendant agreed to pay the plaintiff for his services one-third of the profits of the business and in addition thereto the sum of §125 per month; that the plaintiff had managed the business from December 15, 1889, until November 1, 1903, and that during this period the profits amounted to §138,577.08; that of this amount there had become due to the plaintiff the sum of §67,067.36; that only §34,067.36 had been paid to him. Judgment was demanded for the sum of ' §33,000.
    The answer denied all of the allegations of the complaint with the exception of the allegation that the sum of §34,067.36 had been paid to the plaintiff. It set forth several affirmative defenses and a counterclaim upon which the defendant demanded an affirmative judgment.
    
      Held, that the plaintiff was entitled to have the action referred, as it was evident that the trial thereof would involve the examination of a long account;
    That it was improper for the Special Term to deny the plaintiff’s motion for a reference upon the ground that the contract relied upon was disputed, and that an accounting would be necessary only in the event of the plaintiff succeeding upon the main issue as to the contract having been made;
    That the rule announced by the Special Term would be correct if the action was for an accounting, where the right to an accounting would be determined by ■ the court upon the trial, and where, if an accounting was necessary, it could be directed by an interlocutory judgment, but that such principle was not applicable to the case at bar, as the action was one at law triable by a jury and it would not be practicable to first determine the question as to the contract and then direct an interlocutory judgment for an accounting.
    Appeal by the plaintiff, Harry S. Boisnot, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of May, 1904, denying the plaintiff’s motion for a reference.
    
      William B. Ellison, for the appellant.
    
      Walter D. Clark, for the respondent.
   Ingraham, J.:

The action is to recover a sum of money based upon a contract of employment, whereby the defendant employed the plaintiff to take charge of and manage his business as a druggist at Broadway and Thirty-fourth street, in the city of New York, and agreed to pay the plaintiff for his services one-third of the profits óf the said business, and in addition thereto the Sum of $125 per - month. The complaint set out the contract and alleged that the plaintiff entered into such employment on the 15th day of December, 1889, and continued therein until the 1st of November, 1903 ; that the profits of said business during the period the plaintiff was so engaged in the performance of his said duties, from the 15th day of December, 1889, to the 1st day of November, 1903,, amounted to the sum of $138,577.08; that there became due to the plaintiff from the defendant on account of said profits and monthly payments the sum of $67,067.36, no part of which has been paid save the sum of $34,067.36, and the plaintiff demands judgment against the defendant for $33,000.

The answer denies each and every allegation of the'complaint, except that it admits that the sum of $34,067.36 has been paid by the defendant to the plaintiff; sets forth several affirmative defenses, and a counterclaim based upon a sale by the defendant to the plaintiff of certain goods, wares and merchandise for which the defendant claims the plaintiff promised and agreed to- pay to the defendant the sum óf $2,142.48, and he demands an affirmative judgment against the .plaintiff for that sum. To this the: plaintiff interposed a reply.

Upon the pleadings and ah affidavit that the trial would require the examination of a long account which would! embrace an accounting of the business covering a period of more than thirteen years, and would necessitate the examination of more than 600 statements of weekly-sales made up and delivered by the plaintiff to the defendant, as his manager, and the examination of more than 1,000 bills of goods sent by the defendant and charged by him against .the business conducted by the plaintiff, the plaintiff made a motion to refer the issues for trial. The court denied the motion upon the ground that as the contract relied upon is disputed an accounting will be necessary only in the event of the plaintiff succeeding on the main issue, and a compulsory reference should not be ordered.

This action is one at law. It must be tried, by a jury, and upon the trial thé plaintiff will not only have to prove his contract, but will have to prove the amount due him under it. Then if the defense of the Statute of Limitations is successful as to á portion of the plaintiff’s claim, the question of the amount due the plaintiff would depend upon the profits during the years not barred by the Statute of Limitations. Thus, from the very nature of the contract alleged the amount due to the plaintiff is to be determined upon an ascertainment of the profits of the store of which the plaintiff was the manager, and it is entirely clear that this question cannot be intelligently tried by a jury. The rule announced by the court below would be correct if the action was for an accounting where the right to an accounting should be determined by the court upon the trial and in the event that an accounting was necessary the account could be directed by an interlocutory judgment; but as this action is one at law and must be tried by a jury, it is not practicable to first determine the question as to the contract and then direct an interlocutory judgment for an accounting. The defendant in his answer admits that the plaintiff was in his employ for the period mentioned; admits that on account of his services he paid him upwards of $34,000, so that the substantial question at issue between the parties is as to the rate of compensation to which the plaintiff was entitled and whether or not he has been paid what was due him, and to ascertain the amount due to the plaintiff necessarily involves the talcing of an account, and it seems to me quite apparent that such an accounting would be impossible before a jury. The case is much like that of Rowland v. Rowland (141 N. Y. 485). There the court, affirming an order referring the issues for trial, said: “ 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 the 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. * * * 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.”

There is no question, therefore, but that the action was referable, and, as it seems entirely clear that the action cannot be tried by a jury, we think the motion should have been granted.

It follows that the order appealed from must be' reversed, with ten dollars costs and disbursements, and the motion granted.

Patterson, McLaughlin and Laughlin,, JJ., concurred.

Van Brunt, P. J. (concurring):

I concur upon the ground that Rowland v. Rowland (supra), holds that the court in such a case has power to rfefer.

Order reversed, with ten dollars costs and disbursements, and motion granted.  