Summary
In Pierce v. McLaughlin Real Estate Co. (121 App. Div. 501) the Appellate Division of the second department, Mr. Justice GAYNOR speaking for the unanimous court, said: "No examination is necessary to frame a complaint for an accounting. If the defendant be under the duty to account to the plaintiff and refuses to do so, * * * then all that the plaintiff needs to do is to frame a bare and lean complaint showing that he is entitled to an accounting.
Summary of this case from Matter of GardnerOpinion
October 4, 1907.
James P. Judge [ Martin W. Littleton with him on the brief], for the appellant.
Albert A. Hovell, for the respondent.
The plaintiff does not state in his affidavit what kind of an action he has brought by the service of the summons. It may be gathered from such affidavit that it is a suit for an accounting. It states that the plaintiff had an oral agreement with the defendant to get purchasers of real estate owned or controlled by it, the plaintiff to be paid a percentage of the net profit the defendant should realize on the real estate thus sold, and that many sales were made by the plaintiff. No examination is necessary to frame a complaint for an accounting. If the defendant be under the duty to account to the plaintiff, and refuses to do so, as the plaintiff's affidavit alleges, then all that the plaintiff needs to do is to frame a bare and lean complaint showing that he is entitled to an accounting. Then the course is to obtain an interlocutory judgment that the defendant file an account. The practice following that is equally familiar to the profession. The plaintiff wants to get the account before he serves a complaint.
The order should be reversed.
HIRSCHBERG, P.J., HOOKER, RICH and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion granted, with costs.