The complaint was dismissed at the opening óf the trial before evidence taken. The sole question for determination, therefore, is whether the complaint states a cause of a.ction. We may assume for the argument that no cause of action is stated for a discovery of evidence, nor a cause of action at Jaw for damages, because no definite sum is stated in which plaintiff has been damaged. ¡Nevertheless, we are of opinion that the complaint states two causes of action in equity for an accounting.
The first cause of action stated is for an accounting for the proceeds of certain farm produce, which was the product of a farm which plaintiff was working upon shares for the defendant’s testator. This farm produce was intrusted by the plaintiff to defendant’s testator for sale, and “ sold and disposed of by said deceased in his lifetime, and the proceeds thereof received by him for the joint use and benefit of himself and the plaintiff.” The lessor and lessee under a lease of a farm upon shares become tenants in common of the crops. If one tenant in common receives the common property, either by consent or wrongfully, he holds it as trustee for his cotenant, to the extent of the interest of that cotenant, and the cotenant is entitled to proceed in equity to compel an accounting. (Abbey v. Wheeler, 170 N. Y. 122 ; Dyckman v. Valiente, 42 id. 549.)
For a second cause of action the plaintiff alleges that he and *778the deceased were “ engaged in the business of buying, training, improving and selling horses, upon the understanding and agreement that the said deceased should advance the money for the purchase and transportation of said animals and the expenses of plaintiff while engaged in buying the same, and that the plaintiff should perform the services of selecting and buying the said animals and training and caring for them, and assist in selling them, and that whatever profits should be realized upon such dealings should be shared equally between the plaintiff and said deceased.” ' The plaintiff then alleged his performance of the contract; that several such animals were sold at a profit, and some were retained by deceased for. his own use which could have been .sold at a large profit; that the deceased received the proceeds of the sale of all of said animals, and has never rendered an account thereof to plaintiff, though often requested by plaintiff so to do. The right to proceed in equity for an accounting upon this cause of action is not entirely clear. The case - comes very near to the case of Smith v. Bodine (74 N. Y. 30), in which an employee was to receive a percentage of the profits as payment for services, and in which it was held that the employee was not entitled to proceed in equity for an accounting. In the case of Marston v. Gould (69 N. Y. 220), however; we find the situation very similar to the case at bar. In that case it was held that there was such a joint enterprise as .authorized an action in equity for an accounting. We are of opinion that the facts stated showed a joint venture, distinguishable from the facts in the case of Smith y. Bodine, and one of which equity ought to take cognizance for the purpose of establishing the accounts between the parties. Our conclusion is that the complaint was improperly dismissed and that judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
All concurred.