App. Div.] SECOND DEPARTMENT, MARCH TERM, 1903. however, that the evidence was such that the jury might properly arrive at the conclusion that the contest which is admitted to have taken place in the defendant's barn was a ring or prize fight. It was a physical contest, without weapons, between two individuals for the purpose of entertainment; those who were present each contributed one dollar for the purpose, we may assume, of compensating the contestants, and as it is conceded that one of the men in the arena was knocked down once or twice, and that the contest lasted for ten or fifteen minutes, with intervals of rest, it is hardly to be doubted that it was such a meeting as the law was intended to prevent. The mere fact that the fighting space was not marked off by ropes into a "ring" of sixteen or twenty-four feet, or that the evidence does not show what rules were in vogue, is of little practical importance. The contest, by whatever name it may be called, was evidently what ninety-nine people out of every hundred in the ordinary walks of life would call a ring or prize fight, and it was this kind of contests which the Legislature sought to prohibit by the provision of the Penal Code now under consideration. The jury having found that the defendant was guilty of aiding and abetting this contest, it should be sustained, unless there was manifest error in the trial. It is urged that as the evidence to connect the defendant with the letting of the premises was furnished by one of the contestants, an accomplice in the crime, the conviction cannot be sustained unless such evidence is corroborated, as provided by section 399 of the Code of Criminal Procedure. It is also suggested that the evidence of the accomplice simply shows that it was represented to the defendant that the barn was wanted for the purpose of holding a "smoker" with "the privilege of a boxing contest." But the evidence, while declaring that the language used was that quoted above, goes further and shows that the accomplice asked the defendant if it was all safe, and that the latter said it was all right, indicating that the parties, while talking of a boxing match, had in mind that they were not acting within the spirit of the law. Assuming that one of the contestants who made the bargain for the barn was an accomplice, we think there is no difficulty in pointing out evidence which would tend to connect the defendant with the commission of the crime, as required by section 399 of the Code of Crimi SECOND DEPARTMENT, MARCH TERM, 1933. [Vol. 80. nal Procedure, entirely independent of that furnished by the accomplice. The very circumstance that the defendant, knowing that the place was rented for the use of a crowd of men, made no effort to find out what use was to be made of the premises, but avoided going into the building during the day, is enough to justify a suspicion, at least, that he did not want to know what was in fact to be done. When it is remembered that the evidence showed that the greater part of the crowd were present in his bar room before the contest, that the tickets were on sale there, or were handed around in his presence, the evidence points unmistakably to the conclusion that the defendant either knew of the real purpose or took such pains not to know as amounts to the same thing. The defendant could not close his eyes to matters which were passing about him and allow his premises to be used in violation of law, and escape responsibility. Under the rule established in People v. Everhardt (104 N. Y. 591) we think the evidence did tend to corroborate that of the accomplice, and the question of the sufficiency of such corroboration was for the jury to determine. The judgment appealed from should be affirmed. BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred. THOMAS F. FITZHUGH LEE, Respondent, v. CYRUS V. WASHBURN and GEORGE W. SICKELS, Appellants. Action for an account of the profits of a business, procured by an employee for his employers under a contract by the latter to share such profits with the employee — the remedy held to be at law and not in equity. The complaint in an action alleged that the plaintiff entered the employ of the defendants, a firm of attorneys, under a written contract, by the terms of which he was to use his best endeavors to bring business and litigation into the defendants' office and was to receive, in addition to a stipulated salary, "one-third of the net profits of all the litigation that he may bring into the office;' that he had procured for the defendants a large amount of valuable business and litigation, from which a large amount of profits had accrued, which was in the hands of the defendants. He demanded, as relief, that the defendants account to him for all the business brought by him into their office and that he have judgment for one-third of such net profits. App. Div.] SECOND DEPARTMENT, MARCH TERM, 1903. The complaint did not allege that the plaintiff did not have a full and adequate remedy at law, or that the accounts were complicated or of great length. The contract of employment did not contain a provision for an accounting and an ascertainment of the profits. Held, that the complaint stated a cause of action at law and not one in equity. APPEAL by the defendants, Cyrus V. Washburn and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 16th day of May, 1902, upon the decision of the court rendered after a trial at the Kings County Special Term. Andrew F. Van Thun, Jr., for the appellants. Alexander S. Lyman and John H. Winans, for the respondent. WOODWARD, J.: The complaint in this action alleges that the plaintiff entered into the employment of the defendants, a firm of attorneys, under the terms of a written agreement, on or about the 1st day of January, 1900, and that between that date and the 1st day of June, 1901, he procured much valuable business and litigation, and rendered much valuable service and labor for the defendants herein, from which has accrued a large amount of net profits now in the hands of the defendants, and there is now due and owing this plaintiff from the defendants a large amount of money under the agreement, to divide the net profits, entered into on the 29th day of December, 1899. The contract, or agreement, provides that the plaintiff is to enter the employ of the defendants at a salary of eighteen dollars per week, and is to use his best endeavors to bring business and litigation into the office of the defendants, and, in addition to the compensation mentioned, he "is to receive as a further compensation one-third of the net profits of all the litigation that he may bring into the office." The complaint alleges demand for an accounting, and demands judgment that the defendants render to him an account in full of all the business brought into the office of said defendants by said plaintiff, in pursuance of said agreement, with a statement showing the net profits accrued thereon, and that he have judgment for one-third thereof, with interest from the various dates, and for such other and further relief as may be just, besides the costs of the action. The SECOND DEPARTMENT, MARCH TERM, 1903. [Vol. 80. action was noticed for trial by the plaintiff at the Equity Term, and, upon the case being called for trial, before any witnesses were sworn, the defendants moved that the case be sent to the jury calendar, claiming that a suit in equity did not lie, and that the action is one at law. Decision upon this motion was reserved and the trial proceeded, resulting in an interlocutory judgment, directing an accounting on the part of the defendants, from which the latter appeal. There is no allegation in the complaint, nor do the facts pleaded show, that the plaintiff has not a full and adequate remedy at law under his contract of employment. He is not a partner in the business; he has assumed none of the reciprocal responsibilities which make him a quasi partner, where he would, under the authorities be entitled to an accounting (Parker v. Pullman & Co., 36 App. Div. 208, 215, and authorities there cited), and, aside from the fact that the plaintiff does not appear to know the amount of the net profits, we discover no reason why a court of equity should have taken jurisdiction of this action. The plaintiff does not allege that the accounts are complicated or of great length; there is no provision in the contract, as in the case of Parker v. Pullman & Co. (supra), for an accounting and an ascertainment of the profits, and it requires a long stretch of the imagination to bring the plaintiff and defendants into a fiduciary relation under the provisions of a contract of employment such as is set forth in the pleadings. In speaking of an equitable jurisdiction to grant an accounting the Court of Appeals, in Marvin v. Brooks (94 N. Y. 71, 80), say that "The best considered review of the authorities puts the equitable jurisdiction upon three grounds, viz.: The complicated character of the accounts; the need of a discovery, and the existence of a fiduciary or trust relation. The necessity for a resort to equity for the first two reasons is now very slight, if it can be said to exist at all, since a court of law can send to a referee a long account, too complicated for the handling of a jury, and furnishes by an examination of the adverse party before trial, and the production and deposit of books and papers, almost as complete a means of discovery as could be furnished by a court of equity." (Uhlman v. New York Life Ins. Co., 109 N. Y. 421, 433.) The latter case says: "Judges in the English equity courts have been somewhat slow to maintain jurisdiction in a case where the ground thereof was solely * * * App. Div.] SECOND DEPARTMENT, MARCH TERM, 1903. that the account was complicated, and although there are very many cases in which the statement has been made that equity would sometimes take jurisdiction on that account, yet, in most of them, it is seen that there were added to that other grounds making it proper for equity to assume cognizance of the cases." (P. 433.) This it will be observed was the situation in the case of Parker v. Pullman & Co. (supra), relied upon by the plaintiff. (See middle of page 217.) To affirm the interlocutory judgment now before us is to extend the jurisdiction of equity beyond the extreme limit marked by the adjudicated cases, and to give the plaintiff a remedy different from that accorded to other litigants in actions of which courts of law have jurisdiction, and the mere fact that the plaintiff does not know the amount of his claim is of no importance, as he may name an arbitrary amount and recover within the limit thus fixed. (Brummer v. Cohen, 47 App. Div. 470.) The plaintiff sets forth in his complaint a cause of action at law, and the motion of the defendants to send the case to the jury calendar for trial should have been granted. (See Everett v. De Fontaine, 78 App. Div. 219; 79 N. Y. Supp. 692, for a discussion of the general subject.) The interlocutory judgment should be reversed and the case sent to the jury calendar for trial. BARTLETT, HIRSCHBERG, JENKS and HOOKER, JJ., concurred. Interlocutory judgment reversed, and case sent to the jury calendar for trial, costs to abide the event. HARRY D. BROWN, Respondent, v. MADGE CONE, Appellant. An agency may be proved by the testimony of an alleged agent as to transactions establishing it. The rule that the unsworn declarations of an alleged agent are not admissible to establish the agency as against the alleged principal, does not preclude the alleged agent from testifying under oath as to the actual transactions between him and his alleged principal tending to establish the relation of principal and agent. |