
    Jesse L. Lasky, Respondent, v. Minerva Coverdale, and George White, Appellants.
    (Supreme Court, Appellate Term, First Department,
    February, 1914.)
    Partnership — action upon partnership agreement — allegations of complaint— accounting — jurisdiction of City Court of city of New York — contracts.
    Where in an action upon a partnership agreement it is made a part of the complaint, the rights of the parties are to be determined by the contract.
    Unless the complaint in such case alleges that there was an accounting between the parties, a balance struck and a promise to pay, a common law action between the parties will not lie.
    Where it is clear from the contract that plaintiff was entitled to receive a certain sum weekly provided there were profits, and it is impossible to ascertain what amount, if any, is due plaintiff without an accounting, the case is not within the jurisdiction of the City Court of the city of New York.
    Appeal by the defendants from an order of the City Court of the city of New York denying defendants’ motion for judgment on the pleadings.
    
      O ’Brien, Malevinski & Driscoll (Arthur F. Driscoll, of counsel), for appellants.
    Leon Laski, for respondent.
   Seabury, J.

This is an appeal by the defendants from an order denying defendants’ motion for judgment on the pleadings. The sufficiency of the complaint alone is involved. The original complaint was held insufficient in this court. Lasky v. Coverdale, 143 N. Y. Supp. 756. Since that time an amended complaint has been served, but it does not obviate the difficulty involved in the plaintiff’s position. The amended complaint alleges that the plaintiff and the def endants entered into a copartnership for the production of a vaudeville sketch during the season of 1912-1913. The copartnership agreement is annexed to the amended complaint, and contains the following provisions:

“All the profits are to be divided as follows:

“ Miss Coverdale is to receive one-half of salary received, after commissions have been paid, Mr. White is to receive one-half of salary, and Mr. Lasky is to receive twenty-five dollars weekly for services rendered. ’ ’

The contract being a part of the complaint, the rights of the parties are to be determined by it rather than by the allegations of the complaint as to the effect of the contract. Cupples Envelope Co. v. Lackner, 99 App. Div. 231.

In the absence of allegations showing that there was an accounting between the parties, a balance struck and a promise to pay, a common law action between the parties will not lie.

Under the contract it is impossible to ascertain what amount, if any, is due the plaintiff without an accounting. Upon an accounting it would be possible to determine the money received in the joint venture and the expenses incurred, and if there were any profits to apportion them among those entitled to share in them. It is clear from the contract that the plaintiff was only entitled to receive twenty-five dollars weekly provided there were profits. Such an accounting can only be had in an action in equity, which is not within the jurisdiction of the City Court of New York. In Voegtlin v. Bowdoin, 54 Misc. Rep. 254, this court had under consideration a somewhat similar contract, and the court said: ‘ ‘ This agreement constituted the parties to it partners, and their rights and liabilities are to be determined upon the same principles as are applied by courts of equity to partnership transactions. Wilcox v. Pratt, 125 N. Y. 688, 25 N. E. 1091; Mitchell v. Tonkin, 109 App. Div. 165; Jones v. Walker, 51 Misc. Rep. 624. A common-law action between partners ‘ will not lie until after a full accounting, balance struck and an express promise to pay.’ Mitchell v. Tonkin, supra; Belanger v. Dana, 52 Hun, 39, 43. No such situation as this existed between the parties to the contract alleged in the complaint.”

It follows that the order should be reversed with ten dollars costs and disbursements, and defendants’ motion for judgment on the pleadings dismissing the complaint should be granted, with ten dollars costs.

Guy and Delany, JJ., concur.

Order reversed, with ten dollars costs and disburse-; ments.  