
    William G. Stewart, Respondent, v. Theodore E. Auerbach, Appellant, Impleaded with William S. Heck, Defendant.
    First Department,
    December 29, 1911.
    Principal and agent — accounting — broker’s action for commissions — equity.
    A real estate broker who negotiates a sale of a contract for the purchase of land, under an agreement 'with the owner of the contract to pay him one-half of the gross consideration remaining from the sale after the vendee had paid his vendor the original contract price, cannot maintain an action against the original vendee for an accounting upon allegations that the consideration received by the contract vendee on the sale was of a greater value than the original contract price and that he does not know.the exact' kind of consideration so received, whether in money, mortgage, notes, or either or all of them, or the exact value thereof, and that the contract vendee has refused his demand for an accounting. Such a contract created no fiduciary relation between the parties nor was there a joint venture, and it does not appear that the plaintiff has not an adequate remedy at law.
    Scott, J., dissented, with memorandum.
    Appeal by the defendant, Theodore E. Auerbach, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 20th day of April, 1911, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the said defendant’s demurrer to the amended complaint.
    
      Rolland R. Rasquin, for the appellant.
    
      Walter W. Irwin, for the respondent.
   Laughlin, J.:

The plaintiff alleges that pursuant to an agreement with the defendants, who owned a contract for the purchase of a large tract of land in Wayne county, Penn., he procured a purchaser for the land who was accepted by the defendants and to whom they conveyed the land; that defendants agreed that they “ would deliver to the plaintiff one-half of the gross consideration remaining from the sale of the said contract to the said purchaser, after the defendants had paid the sum of Twelve Thousand Dollars ($12,000), pursuant to the requirements of their said contract to purchase the said tract; ” that the consideration received by the defendants from the purchaser of the land “was of a greater value than Twelve Thousand Dollars ($12,000), but plaintiff does not know the exact kind of consideration so. received, whether in money, mortgage, notes, or either or all of them, or the exact value thereof,” and that defendants have refused plaintiff’s demand to account for the consideration received. The relief demanded is that defendants account for the consideration received on the sale of the land to the purchaser procured by the plaintiff, and if it be shown on the accounting that they received more than $12,000, that they be decreed to pay to the plaintiff one-half of the excess, in so far as the same may be in money, and to assign to the plaintiff one-half the excess consideration, if any, received in other property. The demurrer is upon the ground that the complaint fails to state facts sufficient to constitute a cause of action.

We are of opinion that the court erred in overruling the demurrer. It is not shown that the plaintiff has not an adequate remedy at law. On the facts allegód no accounting is required. There was no fiduciary relation between the parties and no joint venture. Plaintiff had. no interest in the property. He merely was to receive for his services one-half the consideration received by defendants after the deduction of $12,000. On these allegations one-half of the consideration over said sum belongs to plaintiff, and if he needs and is entitled to the intervention of a court of equity to obtain possession of or title to it, he should allege the requisite facts. It is only necessary for the plaintiff to show what consideration was received, and if it was received in money and is in excess of $12,000, he would he entitled to recover one-half of such excess. If any part of the excess consideration received was ' property other than money, the plaintiff would, on the facts alleged, he entitled to recover one-half thereof. It is not shown whether any of the consideration was received in property other than money. If part of the consideration was other property which has no market value it was incumbent on plaintiff to allege the facts upon which a court of equity might decree specific performance of the agreement of the defendants to deliver one-half thereof in excess of the amount agreed to be deducted; and if part of the consideration was property with which plaintiff could only be vested with legal title to one-half or to a one-half interest.by, a formal assignment, the complaint should show the facts bringing the case within the cognizance of a court of equity. An examination of defendants to enable plaintiff to frame his complaint would have revealed facts showing • whether plaintiff has an adequate remedy at law or requires the aid of a'court of equity.

It follows, therefore, that the interlocutory judgment should be reversed, with costs to appellant, and the demurrer sus.tained, with costs, but with leave to plaintiff to amend on payment of the costs in this court and at Special Term.

Ingraham,. P. J., Clarke and Miller, JJ., concurred; Scott, J., dissented.

Scott, J.

(dissenting):

I dissent. The contract, as plaintiff alleges it, is that defendants would deliver to him, in specie, one-half of the gross consideration received for the land, over and above a given sum. It is not a contract for the payment of money alone. I think that the case falls within the principle of Marston v. Gould (69 N. Y. 220) and Marvin v. Brooks (94 id. 71).

Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.  