Schultz v. Brackett Bridge Co. , 72 N.Y.S. 160 ( 1901 )

Hiscock, J.

The ' attachment in this action was granted .to accompany the summons on the ground that the defendant is a foreign corporation. The motion to vacate said attachment is made upon the ground that plaintiff’s cause of action is really one in equity for an accounting between himself and the defendant as copartners, and that, therefore, an attachment will not lie. Support for the motion, upon the ground in question, is sought by defendant in the evidence given upon the trial of the case upon its merits before a referee, and which evidence discloses the fact that plaintiff was to receive a share of the profits realized upon bridge contracts which he might obtain, the question being controverted here whether he was to receive' such share in profits merely as compensation for his services as an agent and employee of the defendant, or whether he was to receive it .through an arrangement which amounted to a partnership between him and the defendant.

Plaintiff’s complaint, upon which the attachment was, in part, at least, founded, clearly sets forth a cause of action at law, it distinctly alleging, in substance, that he was to receive a share in the profits realized upon bridge contracts by way of compensation for his services as agent in procuring them. The evidence and affidavits submitted to me upon this motion certainly do not establish, beyond any question, that his relations with defendant were those of a partner, and that this is an action in equity.

The question whether a partnership exists or not depends, in part, at least, upon the intent of the parties to be gathered from all of their agreements and acts. Heye v. Tilford, 2 App. Div. 350.

The mere fact that a person is to receive for services a share in the net profits of a business, and that an accounting is necessary to ascertain the amount of the compensation,' does not decisively settle that the arrangement is a copartnership, and does not require an equity action. An accounting is proper in an action at law, and the introduction of the requisite evidence does not change the nature of the action. Smith v. Bodine, 74 N. Y. 30.

Plaintiff, as stated, clearly sets forth, in his complaint, an action at law, and if he fails to establish a cause of action under his complaint, defendant, of course, will be entitled to a judgment dismissing the complaint. This question, whether a partnership exists or not, is to be determined within the principle of the cases above cited, from all of the evidence which may be presented. The question is one which is now upon trial upon the merits before the referee, and upon which a large amount of evidence has already been produced. The precise question here presented has been presented upon said reference by a motion of the defendant to dismiss plaintiff’s complaint, upon the ground that his evidence established that he and defendant were copartners, and that there could be no recovery under the complaint; that the cause of action set up in the complaint is one at law, upon which an attachment had been -issued and levied, and that .the plaintiff’s testimony showed that the plaintiff and defendant were to share in the losses as well as the profits. This motion was denied.

Therefore, to pass upon this motion at this time would require a decision, upon affidavits and incomplete evidence, of a question which is involved in the merits of the trial now proceeding before the referee. Independent of the undesirability of thus anticipating the decision of the referee upon the trial, I am averse to deciding the merits of an action upon a preliminary motion of this kind. Kirby v. Colwell, 81 Hun, 385; Chambers & McKee Class Co. v. Roberts, 4 App. Div. 20; Furbush v. Eye, 11 id. 325.

The motion to vacate the attachment is, therefore, denied, with ten dollars costs.

Motion denied, with ten dollars costs.