It is true, as the defendant asserts, that under the substantive law of New York, which is applicable in this case, a partner may not maintain an action at law against his copartner on a claim arising from the partnership business until there has been a full accounting in equity, so that a balance may be struck and an account stated. Sasson v. Lichtman, 2d Dep't, 1950, 276 App. Div. 932, 94 N.Y.S.2d 578; Squire v. Wing, 1962, 35 Misc.2d 287, 230 N.Y.S.2d 42, but see Burnstine v. Geist, 1st Dep't, 1939, 257 App. Div. 792, 15 N.Y.S.2d 48. This principle, however, is of no aid to the defendant in this case for several reasons. While still retaining the principles of equity and their application in appropriate cases, the procedural distinction between law and equity has been abolished in the Federal courts and under the rules there is but one form of civil action in all civil cases.

In our opinion, neither the cases cited by plaintiff nor the dictates of common sense justify such an exception. We also are of the opinion that the Special Term did not abuse its discretion by failing to give plaintiff leave to amend his complaint to state an action at law, since plaintiff's remedy lies in equity only. A subsequent action in equity, if properly pleaded so as to correct the defects in the present complaint, will not be barred by the judgment in this action ( Joannes Bros. Co. v. Lamborn, 237 N.Y. 207; Unity Sheet Metal Works v. Farrell Lines, 130 N.Y.S.2d 276, affd. 283 App. Div. 712). Ughetta, Acting P.J., Kleinfeld, Christ, Hill and Rabin, JJ., concur. [ 35 Misc.2d 287.]

( Arnold v. Arnold, 90 N.Y. 580, 583; Herrick v. Guild, 257 App. Div. 341, 342; Duncan v. Bruce, 179 Misc. 992, 993; Langford v. Delalle, 136 Misc. 62, 63; also, see, Sohon v. Rubin, 282 App. Div. 691; Bankers Trust Co. v. Dennis, 256 App. Div. 495, 502, affd. 282 N.Y. 635; Weiser v. Burick, 47 Misc.2d 962; Lane v. Benedict, 6 Misc.2d 954, 955; Leitner v. Wass, 63 N.Y.S.2d 350, 352; cf. Bassett v. American Meter Co., 20 A.D.2d 956 and Mannaberg v. Herbst, 45 N.Y.S.2d 197, 201, affd. 267 App. Div. 818, affd. 293 N.Y. 657.) In Squire v. Wing ( 35 Misc.2d 287, 288, affd. 17 A.D.2d 835) the court dismissed the complaint in an action at law saying, that "it is still the general rule * * * that suits between partners should be brought in equity, particularly for an accounting, and that an action at law may not be maintained until after an accounting and a balance struck." (Also, see, Dalury v. Rezinas, 183 App. Div. 456, 460, affd. 229 N.Y. 513.)