
    Consolidated Rubber Tire Company, Respondent, v. Firestone Tire and Rubber Company, Appellant.
    Second Department,
    December 30, 1909.
    Pleading — action at law to recover royalties — complaint demanding, equitable relief'—demurrer sustained.
    A complaint to enforce a written contract for royalties which demands a discovery of the facts necessary to a recovery by an inspection of the defendant’s books and papers, an accounting under oath, that a referee be appointed to examine the defendant and its books and report to the court, and that the plaintiff have j udgment for the amount due, does not state facts constituting a cause' of action where it is conceded by both parties that the action is at law.
    Such prayer for relief is not consistent with the complaint. It does not demand a judgment for money only, but asks damages as an incident to the prayer for equitable relief. .
    The Code of Civil Procedure requires a plain and- concise statement of facts constituting each cause of action and a demand for the judgment to .which the r-plaintiff supposes himself entitled. Unless a plaintiff demands a judgment j consistent with his cause of action, he has failed to state facts sufficient to con-4~stitute a cause of action.
    Bich, J., dissented.
    Appeal by the defendant, the Firestone Tire. and Rubber Company, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 24th day of June, 1909, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the amended complaint.
    
      Philip B. Adams [Amos G. Miller with him on the brief], for the appellant.
    
      Charles W. Stapleton, for the respondent.
   Woodward, J.:

The plaintiff brings this action to enforce a. certain written contract for royalties, and the theory of the action-appears to be that the plaintiff is'entitled to discovery of the facts necessary to its recovery by an inspection of the defendant’s books, papers, etc., and incidentally to have judgment for the amount found to be due - upon such inspection. The defendant urges that its demurrer, on the ground that the complaint fails to state facts constituting a cause of action,, should have been sustained, because the cause of action attempted to be pleaded is an action at law, and the prayer for relief is in equity. The defendant’s demurrer has been overruled, and the latter appeals to this court.

The plaintiff concedes, even insists, that this is an action at law, and the only question to be determined, therefore, is whether an action at law has been stated in the complaint. The Code of Civil Procedure requires (§ 481) “ a plain and concise statement of the facts constituting each cause of action without unnecessary repetition,” and “a demand of the judgment to which the plaintiff supposes himself entitled.” Section 518 provides that this “ chapter prescribes the form of pleadings in an action, and the rules by which the sufficiency thereof is determined,” and unless the plaintiff has stated the facts necessary to constitute an action at law, and has demanded judgment consistent with such a demand, it has failed to state facts sufficient to constitute a cause of action, and the demurrer should have been sustained. Assuming, with the present contention of the plaintiff, that this action is an action at law, although the form would suggest an effort to plead an action for discovery, the prayer for relief is not consistent with the complaint ; it is not a demand for judgment for money only. It demands judgment for money only as an incident to the equitable relief demanded; that is, it demands discovery of the amount due under the contract, and when this amount has been found, it asks I. the court to give judgment for the same. That is all that' can bej fairly spelled out of the demand ‘for judgment. The language used is that the “ defendant exhibit to plaintiff its books, papers, accounts and documents containing the records of its transactions in said rubber tires, and in the rubber or other material used in manufacturing the same, and account to the plaintiff under oath for all its transactions in the manufacture and sale of said tires containing said invention, and disclose under oath the quantity of such tires made, used or sold by it since March 27th, 1907, and that a referee be appointed, to examine said defendant, its books of account and take proofs as to the quantity of such tires made or sold by defendant, and to report to the Court concerning the same,” and (2) “that the plaintiff have judgment against the defendant for the amount due upon the .contracts herein described and for the costs of this action.” Obviously the pleader did not have in mind an action at law; the relief demanded depended upon the discovery prayed for, and this discovery could be had in an action at law. It did not give rise to conditions requiring'-1 the intervention of a court of equity. Mr. Justice Bisohoff, in Storr v. Central Bedding Co. (55 Misc. Rep. 398), discusses a very similar case, reviewing the authorities, and we are of the opinion that the conclusion there reached is the one which should prevail here. (See Moore v. Coyne, 113 App. Div. 52, 54.)

The interlocutory judgment should be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff. to plead over on payment of costs.

Jenks, Burr and Miller, JJ., concurred Bich, J., dissented.

Interlocutory judgment reversed, with costs, and demurrer sus^ tained, with costs, with leave to the plaintiff to plead over within twenty days on payment of costs.  