Opinion
Argued February 26, 1894
Decided March 6, 1894
John L. Hill for appellant. Edward P. Lyon for respondent.
Whether the relation between the parties was "in the nature of a general partnership or quasi partnership," as alleged in the complaint, or was that of employer and employee, as alleged in the answer, will not probably be a question of much importance in the determination of the controversy. The real issue is as to the amount which the plaintiff was to receive in addition to a specific sum per week out of the net profits, and whether the alleged settlement of the plaintiff's claim was procured by the fraudulent representations of the defendant. Both parties in their verified pleadings assert that the compensation or interest of the plaintiff was to be a fixed weekly sum and a percentage of the net profits of the business. They disagree as to the amount. In either view of the relation the plaintiff has a right to demand an accounting to ascertain the sum to which he is entitled, unless concluded by payment or discharge.
The facts presented to the court upon the application for the order of reference tended to show that the accounting would involve the examination of many transactions and items, and that no difficult question of law was involved. If the action is to be regarded as equitable, which is the claim made by the defendant, it was referable by order of the court under section 1013 of the Code of Civil Procedure. In equity actions the right of trial by jury never existed, and no constitutional right is involved in a compulsory reference of equity actions. ( Camp v. Ingersoll, 86 N.Y. 433; Thayer v. McNaughton, 117 id. 111.) If the action was legal and not equitable, which is the claim of the plaintiff, then the action being upon contract was, under the circumstances shown, referable.
The allegation in the complant, made apparently in anticipation of the defense of accord and satisfaction, that an alleged settlement had been procured by fraud, did not affect the jurisdiction of the court to refer the case. It showed the right of the plaintiff to have an accounting, notwithstanding such settlement. ( People v. Wood, 121 N.Y. 522, and cases cited; King v. Barnes, 109 id. 267-290.)
The order should be affirmed.
All concur.
Order affirmed.