
    McCullough v. Pence.
    (Supreme Court, General Term, First Department.
    March 15, 1895.)
    Res Judicata—Decision on Demurrer—Answering Over.
    Where a demurrer to a complaint for an accounting, interposed on the ground that it did not state facts sufficient to constitute a cause of action, is overruled with leave to answer, plaintiff’s right to maintain the action is not res judicata, hut defendant, by answering, withdraws the demurrer, and may raise any objections to the maintenance of the action which he did not waive by answering.
    Appeal from special term, New York county.
    Action by John L. McCullough against Harvey L. Pence to recover one-sixth interest in certain royalties. From an interlocutory judgment ordering an accounting, and from a final judgment on the referee’s report, defendant appeals. Reversed.
    Argued before VAN BRUNT, P. J., and O’BRIEN and PARKER, JJ.
    John H. Parsons, for appellant.
    William C. Reddy, for respondent.
   VAN BRUNT, P. J.

The complaint in this action alleged that the plaintiff was the owner of a one-sixth interest or share in certain letters patent, and that defendant had the right of sale under said letters patent upon payment of certain royalties, one-sixth of which belonged to plaintiff, and that defendant had made large sales of . patented articles, and had made a payment to plaintiff on account of his interest; that the amount of sales was unknown to plaintiff, but that the plaintiff has been informed and believed that they have been very extensive; that an account had been requested, but the defendant had refused to so account, and had not made any account since a date in said complaint mentioned. Judgment is prayed for an accounting and for judgment for amount found due. The defendant demurred to this complaint upon the ground of defect of parties, improper union of causes of action, and that the complaint did not state facts sufficient to constitute a cause of action. That demurrer was overruled, and defendant given leave to answer. The defendant availed himself of leave to answer, and answered, denying knowledge of assignment, and averring willingness to pay $10, which amount the royalties did not exceed. The issues thus raised came up for trial at a special term. The defendant claimed trial by jury, which being denied, the defendant moved to dismiss complaint upon the ground that it did not state any cause of action of equitable cognizance, which motion was renewed at the close of the case. These motions being denied, and exceptions duly taken, the trial proceeded, and resulted in an interlocutory judgment referring it to a referee to take and state account. The referee reported $7.23 due at the time of the commencement of the action, and $16.29 due at the time of trial. Judgment was entered upon the referee’s report for said sum of $16.29 and $140.30 costs. From this judgment and the interlocutory judgment this appeal is taken.

It is urged by the appellant that the motion to dismiss complaint should have been granted, because the facts proved did not constitute a cause of action in equity for an accounting. In reply, the respondent claims that the plaintiff’s right to bring this action for an accounting was determined and became res adjudicata on the decision of the demurrer. Several cases are cited to support this proposition, but an examination seems to show that the contrary is the rule. By answering, the defendant has withdrawn his demurrer, and it no longer properly forms any part of the record. This was distinctly held in the case of Brown v. Railroad Co., 18 N. Y. 495. The defendant, therefore, could raise any objections to the maintenance of the action which he did not waive by answering, the general ground against maintaining action being one. It is not of every action in which it is necessary to take an account that equity has jurisdiction. There must be something more than the mere right to an account. It would seem that there must be some trust or fiduciary relation between the parties in order to justify a resort to a court of equity or a decree for an accounting. Even the existence of a bare agency is not sufficient. Marvin v. Brooks, 94 N. Y. 71. In the case at bar there was not the semblance of any trust. The action is brought to enforce a mere contract obligation to pay royalties, and the only final judgment would be a money judgment. The defendant in an action at law could have a reference to take the accounts if necessary, and, if a discovery was needed, an examination before trial was open. We think that the judgment should be reversed, and new trial ordered, with costs to appellant to abide event. All concur.  