This is an action in equity for an accounting and an injunction. Upon the first trial the complaint was dismissed upon the opening. The judgment rendered thereon was reversed by this court in 180 Appellate Division, 685, and a new trial ordered. The new trial was had before the late former Justice Edward W. Hatch, as referee, who made a decision in favor of the plaintiff. Said decision contained the following conclusions of law:
“ 1. That the contract between George Byron Ongley and the defendant, Al H. Woods, dated January 20, 1915, and set forth in the.Seventh finding of fact hereof is not a contract for the personal ervices of said Ongley, but is a contract to write and deliver a play and it was not abrogated by the death of said Ongley. * * *
“ 3. That plaintiff’s intestate, George Booth Ongley (George Byron Ongley) and the defendant, Max Marcin, became and were engaged in a joint adventure in the writing of the play referred to and described in the foregoing findings of fact.
“ 4. That the defendant, Max Marcin, wrongfully and in violation of his duty to his co-adventurer and to the plaintiff as personal representative of the latter, appropriated the play ‘ Birds of a Feather ’ claiming the sole authorship thereof.
“ 5. That the defendant, Al H. Woods, with full notice and knowledge of the rights and interests of plaintiff and her intestate, wrongfully and in violation of said rights and interests, connived and co-operated with the defendant, Max Marcin, in appropriating and producing the play ‘ Birds of a Feather ’ as 1 Cheating Cheaters ’ and as the sole creation and literary work of the defendant, Max Marcin, and in advertising said Max Marcin as sole author of said play and paying him all the royalty accruing from the production thereof.
“ 6. That the defendant, Max Marcin, had no right, title, or authority to sell, transfer or assign to the defendant, Al H. Woods, the play ‘ Birds of a Feather,’ or any interest therein and exclude *466the plaintiff from participation therein as the representative of the deceased Ongley.
“ 7. That the plaintiff is entitled to judgment; that the defendants and each of them account for the moneys and profits made and received by each of them, as royalty or otherwise, from the production and presentation of the play ‘ Cheating Cheaters,’ and pay over to the plaintiff her just and lawful proportion of the royalties accruing from the production and presentation of said play, as the same may be determined by the final judgment of the Court herein; enjoining and restraining the defendant, Al H.' Woods, from hereafter paying to the defendant, Max Marcin, any money, as royalty or otherwise, received or accruing from the production and presentation of said play, ‘ Cheating Cheaters,’ and enjoining and restraining the defendant, Max Marcin, from receiving any of such money from the defendant, Al H. Woods, or from any other person; enjoining and restraining the defendant, Al H. Woods, from hereafter advertising, or causing to be advertised, the name of the defendant, Max Marcin, as sole author of the play ‘ Cheating Cheaters,’ and directing that in all advertising of said play hereafter, and in all advertising used in connection with the production or presentation of said play in relation to the authorship thereof the names of both George Booth Ongley and the defendant Max Marcin shall appear as authors.
“ I direct that an interlocutory judgment be entered accordingly, with costs of the action, which are hereby awarded to the plaintiff against the defendants, to be taxed and entered in the final judgment; that the final judgment therein determine and adjudge the amount of the recovery, or proportion of the profits which has accrued and been received by the defendants from the production of the play ‘ Cheating Cheaters,’ which shall be awarded to and paid to the plaintiff and the portion accruing from future productions thereof shall be awarded to and paid to her.”
Judgment was entered thereon directing that the defendants and each of them account to the plaintiff for the moneys and profits received by each of them as royalty or otherwise from the production and presentation of the play “ Cheating Cheaters ” and that the defendants and each of them pay over to the plaintiff herein her just and lawful proportion of the royalties accruing from the production and presentation of said play, as the same may be determined by the final judgment of the court herein.
In his opinion the learned referee stated: “ The result of the conclusion arrived at in these cases seems to establish that the plaintiff is entitled to an accounting of the profits which have been made from the production of this play. The Appellate Division *467in reaching its conclusion intimated that for the additional work performed in completing the play, by reason of the death of Ongley, the defendant Marcin might be entitled to compensation by way of an allowance. In disposing of this question, however, there is no basis in the evidence upon which such an allowance can be made. No such claim is made by either defendant; the position of both defendants is that Ongley never contributed anything, either by way of the origination of the plot, or otherwise, as it was finally produced. The attitude of both is that Marcin originated, wrote and sold to Woods, and Woods produced an entirely different play, and as produced it presented nothing contributed by Ongley, either by way of origination or composition. In other words, the position of both is that the play produced by Woods was an entirely different play from that referred to in the contract between Ongley and Woods, and the contract between Ongley and Marcin, to which Woods consented. This contention, as appears by our findings, we have rejected, holding that Ongley contributed work by way of origination and actual writing of an act and a half of the play, then called ‘ Birds of a Feather; ’ that such act and a half was appropriated by Marcin and formed a part of the play ‘ Cheating Cheaters/ as it was finally produced. It is probably true that Marcin and Woods could have terminated the contracts above mentioned after the death of Ongley and might have claimed compensation by way of an allowance to Marcin for the work which he did and which was made necessary by the death of Ongley, but manifestly, under the decisions above cited, he could not deprive the plaintiff from insisting upon right to a participation in the profits. It became Marcin’s duty as a joint adventurer with plaintiff’s intestate to complete the contract and to account for the profits ultimately secured through their joint efforts. This duty he owed to the deceased. Consequently, when he appropriated the labors of his coadventurer and produced the play, he was bound, acting in good faith, to account for the profits. This he did not do, but, on the contrary, both he and Woods, with full knowledge of the situation, made use of the work done by plaintiff’s intestate and undertook to exclude plaintiff, as the representative of the deceased, from participation in the profits which have been made. The labor of the deceased produced a part of this play, and an essential part, without which, as it was finally presented, it would have been incomplete. There was nothing in the contract between Ongley and Marcin which required either to do a particular portion of the work necessary to the production of the play; it was the play which was the subject of the contract between Woods and the deceased; that was produced *468and Ongley made a substantial contribution thereto. Such contribution made the completed play; without it, it cannot be said that the play would have been produced, and, if produced, that it would have been successful. There is, therefore, no basis in the evidence upon which to found any allowance to Marcin for work which he did, in addition to that which had been done by his coadventurer prior to his death. The conclusion is irresistible that both defendants were fully acquainted with the situation as it existed at the time of Ongley’s death and with full knowledge of such facts both defendants appropriated the work done by Ongley and both defendants have denied to him all right of participation in the profits which have been earned and have also refused to advertise him as co-author with Marcin, both of which rights were secured to him by the terms of his contracts with both defendants.”
In my opinion the interlocutory decree settled the facts and the law of this case and the only matter thereafter open was the taking of the account in pursuance of the provisions of the interlocutory judgment. Thereafter an order was entered appointing a referee to take the account as provided for in that interlocutory judgment. The figures were presented to the referee and he made a report which the learned Special Term has set aside and made a new order of reference. I think this was error and that the court should have corrected the account so far as two matters were concerned which presented questions of law only. The referee allowed compound interest. We find no warrant in law for this and the account should have been corrected in that regard. He also certified that it was a difficult and extraordinary case and ordered an extra allowance of $1,800. This he had no authority to do. Application for an extra allowance could only have been granted by the court and it was not within the province of the referee to do more than certify that in his opinion it was a difficult and extraordinary case. The attempt was made before him to retry questions which in my opinion were finally decided by the interlocutory judgment, and the order setting aside the referee’s report and ordering a new reference is for the purpose of taking evidence of matters which in my judgment were completely and definitely settled by the interlocutory judgment. I think an end should be put to this litigation. It already has been very costly and long drawn out. The court can and should correct the two errors pointed out in the report of the last referee. I dissent from the affirmance of the order appealed from and vote to correct the referee’s report as indicated, and, as corrected, to affirm the same.
Martin, J., concurs.
*469Order so far as it sets aside the referee’s report and refers the accounting to the official referee affirmed, with ten dollars costs and disbursements to the defendants; so far as appealed from by the defendant Marcin, the order is reversed. On the appeal of the defendant Woods, order affirmed in so far as it allows simple interest only on the amount found due by the referee from defendants to the plaintiff. Settle order on notice.