
    Samuel S. Hart, Appellant, v. Jones W. Wilder and Others, Respondents.
    
      ¿LceduMj/iigaright to,elect to take profits ,in lieu of salan'y —¿the election must be -, , exercised befoj-e the employment ends. ■
    
    In .an .action brought-to compel an accounting of the profits of a printing establishment, it appeared .that the defendants agreed to pay the plaintiff fifty dollars a week until the printing office had paid for itself, after which time, whenever he might elect, the plaintiff could take half the profits in lieu of a ' weekly payment of fifty dollars. The plaintiff, who was familiar with the condition of the business, never-made an election, .and was paid -fifty dollars per week until he was discharged.
    
      JETeld, that he was not entitled to an accounting ;
    That his time to elect had expired, with his employment,, before he began his action,' and that, therefore, he' never became entitled to any portion of the . -profits, ■ . . •
    
      Appeal by the plaintiff, Samuel S. Hart, from a judgment of the-Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Kings on the 30th day of August, 1894, upon the decision of the court rendered after a- trial at the Kings County Special Term.
    The action was brought to compel an accounting, of the profits of a certain printing establishment located in the city of Hew York.
    
      Charles Howard Williams and Cephas Brainerd, for tha appellant.
    
      Benjamin F. Traey and James H. Soley, for the respondents.
   Per Curiam:

The plaintiff having failed in the Hew York Superior Court to obtain an accounting from the defendants, on the theory that he was their partner, sought like relief in this action on the theory oían employment which entitled him to share in- the profits of the-printing business carried on by the parties. But the evidence which he laid before the court in this case only tended again to' prove the partnership relation, which the Superior Court had already adjudged-not to exist, and on the other hand tended to negative any employ-tiient upon the terms stated in the complaint in the present suit.As the learned trial judge correctly held, if an employment was established at all, it differed materially from that which the plaintiff' had pleaded. The- only contract of this character, which could have been inferred from the proof, was the agreement testified to by the defendant Wilder, whereby the' defendants undertook to pay the plaintiff fifty dollars a week until the' printing office had paid- for itself, after which time, whenever he might elect, the plaintiff could-take half the profits in lieu of the weekly payment of fifty dollars. The plaintiff never made this election,- and, therefore^ never- became-entitled" to any portion of the profits.

It is argued that the plaintiff could hot make this election without knowing the condition of the business and, therefore, that he is entitled to an accounting now, even on the agreement as the defendants state it. But his employment, whatever its nature and terras, was ended before this suit was brought, and lie cannot have an accounting at this time to enable him to elect in regard to a matter as to which his right of election was gone prior to the commencement of the action. Assuming the contract to have been what the defendant Wilder swears it was, the defendants were doubtless bound, while the plaintiff remained in their service, to afford Him full information as to the condition of. the business, in order that he might know when the printing establishment had paid for itself and what was the difference between half the profits.and his weekly compensation. The evidence indicates, however, that he must have been tolerably well informed at all times in respect to these matters. The operations of the printing office were carried on under his own supervision ; the books appear to have been open to his inspection and practically under his control; and in 1887, when he demanded a statement showing the financial relations, between the printing office and the defendants, he himself says that they furnished such an account We do not think that he can fairly complain that the defendants kept from him any knowledge essential to an intelligent choice between retaining his fifty dollars a week or accepting half the profits.

The court below found that the plaintiff had been paid by the defendants at the rate of fifty dollars a week up to the time of his discharge. This finding is supported by the plaintiff’s own testimony. Nevertheless, his counsel claim that his testimony also shows a series of deposits by him with the defendants upon which they still owe him a balance of $2,400. The statements of the witness in regard to this claim aré so vague and apparently contradictory that we are at a loss to understand their precise meaning; but it is sufficient to dispose of the matter, so far as the present action is concerned, to say that no such claim is contained or suggested in the complaint.

The two questions which we have discussed are not noticed in the opinion of the trial judge, and probably were not brought to his-attention. We are satisfied with the conclusion he reached and the reasons assigned for it. The judgment should be affirmed.

All concurred, except Cullen, J., not sitting.

■ : Judgment affirmed, with costs.  