I am of opinion that the plaintiff’s cause of action is in equity. It is based on an agreement evidenced by a letter written by the defendant’s testator to the plaintiff on the 19th day of February, 1901, the body of which is as follows:
“ In consideration of your having secured for me from O. M. Young one share in the Cuba Company of New Jersey, of which William C. Van Home is President, for the price of Fifty thousand Dollars ($50,000), covering amount which has already been paid thereon, and is to be paid, I hereby agree to pay you one-third (1 /3) of the net profits thereof, when and as the same may be received by me.
“ Such net profits are to be ascertained by charging the full cost of said share, including all calls paid thereon, with interest at the rate of five per cent per annum; it being understood and agreed that this share is my absolute property, with the right to me to sell or dispose of the same at any time without consulting with you or receiving consent on *451your part; the sole interest you have being in' whatever profits that may be realized on the basis above stated, in case of sale by me or otherwise realized by me thereon.
“ I understand that there has thus far been a call made upon such share of Ten thousand Dollars, the amount of which I have this day paid.
“ Kindly confirm this understanding, and oblige,
“ Very truly yours,
“ E. R. BACON.”
Under this contract I think the plaintiff’s remedy is an accounting involving a sale of the property and a determination of the net profits, to one-third of which he is entitled. (Jones v. Kent, 80 N. Y. 585; Weldon v. Brown, 84 App. Div. 482; 89 id. 586.) The case is distinguishable from Simon v. Etgen (213 N. Y. 589) on the ground that there the amount to which the plaintiff was entitled was expressly limited, in any event, to $25,000, and defendant could have retained title without selling on paying that amount and on that theory no sale or accounting was necessary, and as defendant had parted with the title none could be decreed, and it was held that an action at law could be maintained to recover that specific amount on allegations and proof that a reasonable time had elapsed within which the defendant might have sold the property and that he had received offers, which he unreasonably rejected, sufficiently large to entitle the plaintiff to the maximum amount, and was distinguished from Jones v. Kent (supra) on that precise ground by this court (Simon v. Burgess, 146 App. Div. 37), and was distinguished by the Court of Appeals from Lorillard v. Silver (36 N. Y. 578) on the ground that the evidence of defendant’s bad faith and failure to sell within a reasonable time warranted a finding that defendant had breached the contract. Any discretion the testator had with respect to the time within which a sale should be made ended upon his death.
I am, therefore, of the opinion that the order is right and should be affirmed, with costs.
Order reversed, with ten dollars costs and disbursements, and motion denied and the case transferred to the Trial Term for trial.