RICH, J.:

The defense is substantially a denial of the existence of a partnership, and a separate defense that plaintiff was merely employed to render services in connection with the erection of buildings upon lands owned by the defendant Macbeth. The only issue seriously litigated at the trial, and presented by this appeal, relates to whether or not a partnership relation existed between the parties.

Defendant Macbeth was the owner of certain land in Queens county. He desired to build upon it, and for this purpose consulted with the plaintiff, who was an architect and builder. He says he did not wish to be burdened with the responsibility of the erection of the houses, so he employed plaintiff at fifty dollars per week, plus a bonus of one-third of the profits of the enterprise, to be paid when the buildings were sold, to supervise and attend to the construction of the houses; and McDermott, the defendant, was also employed, to take charge of the clerical work, procure mortgages, keep books and pay bills, for which he was to receive as his compensation one-third of the profits on the sale of the buildings. Plaintiff commenced the construction of the houses and remained on the job until their completion on July 29, 1922.

The learned trial court was evidently of the opinion that even if plaintiff was not entitled to a finding that a partnership existed, he was entitled to a judgment for one-third of the profits, to be ascertained by an accounting, and declined to permit defendant's counsel to refute the testimony of one of plaintiff's witnesses, that Macbeth had told him plaintiff was a partner in the enterprise. This theory was erroneous, for the present action is in equity for the dissolution of a partnership and an accounting, and unless plaintiff established the existence of a partnership relation, the defendants were entitled to a dismissal of the complaint ( Arnold v. Angell, 62 N.Y. 508), and plaintiff would be remitted to his action at law to recover for his services, in which of course defendants would be entitled to their defense that plaintiff had not performed his agreement. The court, however, found that a partnership existed between the parties and decreed an accounting.

While an agreement to share in the profits and losses as such is not specifically shown, nevertheless the testimony of plaintiff and his witnesses coupled with the testimony of the defendants leads to the conclusion that it was the intention of the parties to become partners ( Heye v. Tilford, 2 App. Div. 346; affd., 154 N.Y. 757), the plaintiff furnishing his time, labor and experience, in the construction of the houses, the defendant McDermott attending to the clerical work and the procuring of mortgages, and Macbeth furnishing the cash and the lots. Macbeth admitted plaintiff was to receive one-third of the profits and that he had completed his work.

The judgment should be affirmed, with costs.

RICH, J.:

Judgment unanimously affirmed, with costs.