
    George Carver Rice, Appellant, v. William R. Peters, as Executor, etc., of Orrin K. Rice, Deceased, Respondent.
    Third Department,
    November 11, 1908.
    Real property — lease of farm on shares—pleading — accounting in equity — facts showing joint enterprise.
    Under a lease of a farm to be worked on shares the lessor and lessee become tenants in common of the crops, and if one receives them either by consent or wrongfully, he holds as trustee for his cotenant, and the latter may sue in equity for an accounting without alleging a definite sum as damages;
    A complaint which alleges an agreement to engage in the business of buying, training and selling, horses, the defendant’s testator to ad vanee, the money for the purchase, transportation and expenses, and the plaintiff to select, buy,, train and. sell the animals, the profits to be divided equally, that the plaintiff performed and that the profits and some of the animals which could have been sold were retained by the decedent who did not account upon demand, sets forth facts showing a joint enterprise and the right of the plaintiff to an accounting in equity.
    Kellogg, J., concurred in result, with opinion.
    Appeal by the plaintiff, George Carver Rice, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Washington on the 13th day of April, 1908, upon the decision of the court rendered at an adjourned term of the Washington Trial Term without a jury, dismissing the complaint. *
    
      Edgar T. Brackett [ William S. Ostrander of counsel], for the appellant.
    
      Herbert Van Kirk, for the respondent.
   Smith, P, J.:

The complaint was dismissed at the opening óf the trial before evidence taken. The sole question for determination, therefore, is whether the complaint states a cause of a.ction. We may assume for the argument that no cause of action is stated for a discovery of evidence, nor a cause of action at Jaw for damages, because no definite sum is stated in which plaintiff has been damaged. ¡Nevertheless, we are of opinion that the complaint states two causes of action in equity for an accounting.

The first cause of action stated is for an accounting for the proceeds of certain farm produce, which was the product of a farm which plaintiff was working upon shares for the defendant’s testator. This farm produce was intrusted by the plaintiff to defendant’s testator for sale, and “ sold and disposed of by said deceased in his lifetime, and the proceeds thereof received by him for the joint use and benefit of himself and the plaintiff.” The lessor and lessee under a lease of a farm upon shares become tenants in common of the crops. If one tenant in common receives the common property, either by consent or wrongfully, he holds it as trustee for his cotenant, to the extent of the interest of that cotenant, and the cotenant is entitled to proceed in equity to compel an accounting. (Abbey v. Wheeler, 170 N. Y. 122 ; Dyckman v. Valiente, 42 id. 549.)

For a second cause of action the plaintiff alleges that he and the deceased were “ engaged in the business of buying, training, improving and selling horses, upon the understanding and agreement that the said deceased should advance the money for the purchase and transportation of said animals and the expenses of plaintiff while engaged in buying the same, and that the plaintiff should perform the services of selecting and buying the said animals and training and caring for them, and assist in selling them, and that whatever profits should be realized upon such dealings should be shared equally between the plaintiff and said deceased.” ' The plaintiff then alleged his performance of the contract; that several such animals were sold at a profit, and some were retained by deceased for. his own use which could have been .sold at a large profit; that the deceased received the proceeds of the sale of all of said animals, and has never rendered an account thereof to plaintiff, though often requested by plaintiff so to do. The right to proceed in equity for an accounting upon this cause of action is not entirely clear. The case - comes very near to the case of Smith v. Bodine (74 N. Y. 30), in which an employee was to receive a percentage of the profits as payment for services, and in which it was held that the employee was not entitled to proceed in equity for an accounting. In the case of Marston v. Gould (69 N. Y. 220), however; we find the situation very similar to the case at bar. In that case it was held that there was such a joint enterprise as .authorized an action in equity for an accounting. We are of opinion that the facts stated showed a joint venture, distinguishable from the facts in the case of Smith y. Bodine, and one of which equity ought to take cognizance for the purpose of establishing the accounts between the parties. Our conclusion is that the complaint was improperly dismissed and that judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.

All concurred.

Kellogg, J. (concurring):

The complaint in substance sets forth three causes of action: (1) To recover the plaintiff’s half of the farm produce which the defendant’s, testator had sold; (2) to recover his half of the profits on some horse transactions, which profits defendant’s testator had received; (3) to recover for the value of various services performed by the plaintiff. All the necessary facts are alleged to show a cause of action for each of these matters, éxcept the amount of the plaintiff’s damage is.not definitely alleged, but in place thereof is the genei’al allegation that they amount to several hundred dollars and the plaintiff has no account of them; that by agreement between them, the defendant’s testator had kept such an account, and then tlie plaintiff asks to have the defendant account for the various matters and that he have judgment for the balance found his due.

Por the purpose of reviewing the correctness of the judgment, it is not necessary to decide whether the complaint sets forth a cause of action for equitable or legal relief; it would seem to be a reproach to our judicial system if upon the facts stated the plaintiff is not entitled to some relief. No motion to make the complaint more definite and certain was made, but at the trial, for the first time, objection was raised to the complaint, and it was dismissed for insufficiency, on the apparent assumption that equitable relief alone was sought, and that the matters set forth did not justify such relief.

Upon the motion as made, the question Was not for the court to determine whether the relief desired was legal or equitable, but whether, upon the conceded facts, the plaintiff was entitled to any relief. I am inclined to think that the allegations of the complaint entitled the plaintiff to equitable relief. If not, he was clearly entitled to recover damages.

If-we treat the action as á legal one, the complaint is clearly subject to a motion to make it more definite and certain, and to have the causes of action stated and numbered, but such objections were waived. Upon a motion to make the complaint more definite and certain, the excuses set up in the complaint for not stating more . particularly the amount of damages would come before the court for consideration in determining whether the plaintiff may be compelled to state them more specifically. Without discussing the technical question whether the complaint is one at law or in' equity, it is apparent, taking the allegations as true, that the plaintiff is entitled to some relief.

The judgment, therefore, should be reversed;

Judgment reversed and new trial granted, with costs to appellant to abide event.  