
    WILLIAM S. ARNOLD and Others, Plaintiffs, v. EMERSON C. ANGELL, Defendant.
    Before Curtis and Sedgwick, J.J.
    
      Decided July 2, 1874.
    I. Accounting, action nob. When sustained.
    1. An unsustained averment of partnership in the complaint does not prevent the upholding an action for an accounting, in there are other averments in the complaint sustained by the evidence which are of themselves sufficient to entitle the plaintiff to an account.
    
      a. What allegations in a complaint being sustained by the evidence are sufficient to sustain an action for an accounting, although there is an averment of partnership not sustained by evidence.
    Motion for a new trial at general term, under section 268 of the Code.
    The complaint in this case was as follows:— “I. That on or about April 25, 1870, the plaintiffs and the defendant entered into a copartnership by verbal agreement, for the purpose of carrying on the business of a Turkish bath establishment, at No. 61 Lexington-avenue, in the city of New York, and on July 22, 1870, the plaintiffs made a further verbal agreement that their said copartnership should continue five years.”
    “II. That prior to April 25, 1870, the defendant alone carried on the establishment, and in order to sustain and enlarge his business, these plaintiffs entered into the said copartnership under the agreement that the defendant should conduct the business in his name, and that these plaintiffs should make advances of money to the concern for the purpose of its business, and for improving and equipping the establishment, and that the defendant should receive three-quarters of the net profits, and that the plaintiffs should receive one-quarter of the net profits, and that interest should be allowed upon the amount contributed by them, and charged as an expense of the business.”
    ‘ ‘ III. In pursuance of said agreement, these plaintiffs, between May 9, 1870, and October 27, 1870, contributed to the said copartnership, the sum of sixteen thousand five hundred dollars.”
    “IV. The business of the said copartnership has been carried on since the time of its formation as aforesaid, and the defendant has from time to time applied to his own use, from the receipts and profits of said business, large sums of money exceeding the proportion thereof to which he was entitled, and has concealed, and now conceals from the plaintiffs, the receipts and profits of said business, and has refused, and still refuses, to give account thereof to the plaintiffs, or to give them access to the books of the concern, and excludes them from any participation in the management of said business, and he refuses to pay the debts due from said copartnership, although he has funds sufficient for that purpose.”
    “Therefore, the plaintiffs demand judgment, that the said copartnership be adjudged dissolved, that a receiver of the property, rights and good will of said copartnership be appointed, with power to dispose of the same, and to collect all debts for the benefit of all parties entitled thereto, and that the proceeds thereof, after the payment of the just debts of the copartnership and the costs of this action be divided between the parties hereto, according to their respective rights.”
    The answer was a general denial.
    The cause was tried by the court without a., jury.
    The manner in which the questions involved came before the general term appears in the opinion.
    
      Steele & Boyd, attorneys, and of counsel for defendant,
    urged I. A partnership is not established within the meaning of the law—and the decisions (Ogden v. Astor, 4 Sandf. 311; Pinckney v. Keyler, 4 E. D. Smith, 469 ; Burckle v. Eckart, 1 Denio, 337; Wetmore v. Baker, 9 Johns. 307; Chase v. Barrett, 4 Paige, 160).
    II. Equity can not be invoked by a party who has. an adequate remedy at law. If the plaintiffs made an agreement to advance the sum of sixteen thousand five hundred dollars, and that they were to receive interest on the same, and one-quarter of the profits, or a sum equal to one-quarter of the profits (as the complaint alleges), their remedy is clearly in an action at law, against the defendant, to recover a sum equal to one-■quarter of the profits.
    III. The plaintiffs are not entitled to an accounting in this action. Where the plaintiff files his complaint, alleging a partnership, and asking for an accounting by the defendant, if he does not establish the existence of the partnership, he will not be entitled to the accounting. The mere relation of creditor of the defendant is not, of itself, sufficient to entitle plaintiff, to an accounting (Salter v. Ham, 31 N. Y. 321).
    
      Flanagan & Bright, attorneys, and O. E. Bright of counsel for plaintiff.
   By the Court.—Sedgwick, J.

The defendant moves for a new trial under section 268 of the code. I think that the motion should be denied.

The case was tried by a judge at special term. He found, as a matter of fact, that the plaintiffs had agreed with the defendant to make the advances which the evidence showed were made to the defendant, and they had mutually agreed that the plaintiffs should receive one-fourth of the profits of a certain business, until all the debts were paid, when these advances should be repaid, but the learned judge found that the parties were not partners. He further found that an account of the business should be taken, of its expenses and receipts, and of the advances made by the plaintiffs.

These findings were supported by sufficient testimony given in the case. The plaintiffs’ right of action on the facts, was in its nature equitable. The relation of the defendant to them was such that he might properly demand directly an accounting, as to the whole-of the business. The complaint did not aver a case which put the right to an accounting solely on the fact that a partnership existed, but considering the allegations of a partnership as surplusage, enough was left - to support the findings of the learned judge.

The motion should be denied, with costs.

Curtis, J., concurred.  