This action for an accounting was originally brought in the county of Miagara, and the defendant, after a demand and after service of answer, moved to change the venue on the ground that the subject of the action, or some part thereof, was situate in the county of Schenectady. (Code Civ. Proc. § 982.) •
The plaintiff contends that the action is for the dissolution of a copartnership, and in his prayer for relief he asks for an accounting for that reason. At the outset, I think, the complaint does not allege facts sufficient to establish that a copartnership relation existed between the parties. The complaint does state in general terms that in 1900 the parties “ became copartners in joint enterprises under an oral agreement whereby ” the parties were to contribute moneys for “ the joint enterprises hereinafter mentioned.” Mo partnership enterprises are set out in the complain t. It alleges that they invested money in the purchase of promissory notes, in household furniture, in a mortgage upon real property in the county of Schenectady, and also in real estate situate in that county. The character of the ownership itself refutes the proposition that a copartnership was intended by these investments. A partnership indicates that the partners are to engage in some definite business in which they are to share the profits. The basis of the relation is a contract between the parties, and it is not alleged that there was any agreement to engage in any business enterprise whatever. Further, the complaint alleges “ That said partnership and joint enterprise arrangement was not entered into for any specific or definite period, but its extent as to time and the nature of the enterprises to be carried on were indefinite and subject to the volition of the parties at any and all times.”
*129Assuming, however, that a copartnership relation may be spelled out of the complaint, we still think the order should be affirmed.
The complaint alleges the specific property which is within the copartnership, all of which is in the county of Schenectady, where the defendant resides. Included in that property is the mortgage and real estate already referred to. An answer has been interposed denying the copartnership and alleging as to the real property that the parties own the same as tenants by the entirety, as the conveyance on its face indicates. The plaintiff has tendered this issue, and it is one of the issues to be tried. The plaintiff does not establish his cause of action merely by proving that the copartnership exists. He must also establish what property is within its compass and his allegations denote that he expects so to do. The issue then to be disposed of is whether the real estate and the mortgage are copartnership property. As a result of the trial of this issue a finding-will be made to the effect that the property mentioned is copartnership property, or if the defendant succeeds, that she is an owner therein. The plaintiff, therefore, is seeking to procure a judgment establishing that the title to said property is in the copartners, or at least the “ estate, right, title, lien or other interest in real property ” will be affected by the decision in this case.
The plaintiff has cited two cases (Simpson v. Simpson, 41 App. Div. 449, and Barnes v. Barnhart, 102 id. 424). These cases are not applicable. In the case first cited the complaint alleged a copartnership, and no answer was interposed. The existence of the copartnership relation was, therefore, conceded, and there was no issue of title to property to try. The same is true of the other case cited, which simply involved the distribution of assets and the legal title of the parties to the property affected was not in controversy.
The appellant also relies upon authorities which determine that copartnership real property is for certain purposes to be treated as personal property in order to adjust the equities between the parties and also for the purpose of paying debts of the firm. There is not any doubt of that rule, and if it was conceded in this case that this property wras copartnership property and other issues as to the rights of the parties therein were those to be tried the appellant’s position would be invulnerable. The issue, however, does not relate *130to the division or distribution of copartnership assets. At the threshold of the inquiry we are met with the controversy, and the only one to be tried, that neither this real estate situate in the county of Schenectady, nor any of the property in fact, is copartnership property at all.
The order should be affirmed, with costs.
All concurred, Kbuse and Bobsoh, JJ., on first ground-stated in opinion, except MoLemtah, P. J., who dissented, in an opinion.