Johnston v. Berlin

Blanchard, J. This action is brought to secure an accounting for certain commissions plaintiff claims to be due him from defendants, upon certain alleged sales and duplicate orders, under an agreement whereby plaintiff was employed by defendants as a salesman, and to recover the amount ascertained by such an accounting. Defendants contend that the action is one of which equity cannot take cognizance; that the allegations of the complaint and evidence given upon the trial disclose no relationship between plaintiff and defendants save that of salesman and employers, and that such a relationship will not support an action in equity for an accounting and that, accordingly, the action must be dismissed. This contention is sustained. by the authorities. Smith v. Bodine, 74 N. Y. 30; Chaurant v. Maillard, 56 App. Div. 11; McCullough v. Pence, 85 Hun, 271; Skilton v. Payne, 18 Misc. Rep. 332. The position of the plaintiff, so far as the retention of the case for the purpose of awarding him legal relief, is concerned, is precisely the same as in Skilton v. Payne, supra. Plaintiff has [147] not asked for such retention. He stands upon his right to equitable relief, and upon the authority of that case and the cases there cited, the complaint must be dismissed, with costs, but without prejudice to an action at law. Complaint dismissed, with costs.