The plaintiff alleges in his complaint as follows:
“ 2. That, heretofore and on or about the 20th day of November, 1919, the defendant entered into an agreement with the plaintiff under the terms of which the defendant agreed to pay to the plaintiff one-half of a commission of $10,000, when and as received by it from Empresa Naviera de Cuba, a foreign corporation, on the purchase by said Empresa Naviera de Cuba of the steamship ‘ St; Paul ’ and thereafter and in the month of December, 1919, it was further agreed by and between the plaintiff and the defendant that in consideration of the assistance to be rendered by the plaintiff to the defendant in procuring steamships for said Empresa Naviera de Cuba, the defendant would pay to the plaintiff one-half of any commission which might be paid to it by Empresa Naviera de Cuba for purchasing steamships in the United States of America, such one-half of said commission to be paid to the plaintiff immediately upon receipt of the same.”
He then alleges that plaintiff and defendant co-operated in securing the sale of the steamship St. Paul to Empresa Naviera de Cuba, which paid defendant the sum of $10,000 as a commission for the services of plaintiff and defendant. He further alleges that in November and December, 1919, and January, 1920, plaintiff and defendant procured the purchase by the. same company of the steamships Minneapolis, Yadkin and Watauga, under an agreement by said company that it would pay defendant for its services and those of plaintiff five per cent of the purchase price thereof; that said company has paid to defendant the commissions due under said agreement for the purchase of said three steamers, “ and the defendant received such amounts for the account of the plaintiff and the defendant under said agreement with the plaintiff that it would pay one-half thereof to this plaintiff,” and plaintiff demands judgment: First. That an- accounting be had between the plaintiff and the defendant of all amounts received by the defendant from the Empresa Naviera de Cuba for the services of the plaintiff and the defendant in connection with the purchase of the steamships St. Paul, Minneapolis, Yadkin and Watauga. Second. That upon com*310pletion of said accounting the defendant be decreed to pay-over to this plaintiff such sums as shall be ascertained to be due to him from said defendant.
The complaint is framed solely in equity and I can find no equitable cause of action stated therein.
I am of the opinion that it set forth no joint ownership of a fund with a right to .an accounting, nor a partnership in said fund, but an agreement on the part of plaintiff to render services for defendant, in connection with the purchase of steamships, for which defendant bound itself to pay plaintiff one-half of any commissions it received in the premises. I think that only an action at law is set forth, entitling plaintiff to recover one-half of the amount received by defendant under the agreement between them.
The order appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.
Order reversed, with ten dollars costs and disbursements, defendant’s motion denied and plaintiff’s motion granted, with ten dollars costs, with leave to defendant to withdraw demurrer and to answer on payment of said costs.