The complaint recites a contract whereunder plaintiff’s intestate agreed with defendant that, whereas the former had invested $12,500 and the latter $6,000 in a piece of property (presumably standing in the name of both), all expenses and income should be shared equally; and that, if the property were not sold within one year from the date of the agreement, the former should receive six per cent, interest on the excess of her capital invested; and that the “surplus” (namely, profit) arising on a final sale should be divided equally,
It further alleges that the property was not sold until about three years after the death of plaintiff’s intestate, and then it was sold under foreclosure; that defendant had, in the meantime, collected all the “ profits,” and had paid over to the plaintiff less than half of what he claims to be due under the agreement.
*418Defendant’s counsel contends that the agreement constitutes a mere fixing of the respective interests of the parties as tenants in common, and that the rents, subsequent to the death .of the intestate, belong to her heirs, and that, as the complaint does not distinguish between those collected before and those after her death, no cause of action at all in the plaintiff is set out in the complaint.
• The agreement and the conduct of the parties thereunder must be treated as establishing, substantially, a partnership between them. Wilcox v. Pratt, 125 N. Y. 688; King v. Barnes, 109 id. 267, 285; followed in Hollister v. Simon-son, 18 App. Div. 73-78. See also Chester v. Dickerson, 54 N. Y., 1, 8.
Plaintiff, therefore, is entitled to an accounting as of partnership affairs, it being open to the heirs at law, upon his accounting as administrator of the estate, to litigate the question whether the rents accruing subsequently to the death of the intestate are to be regarded as real or personal assets. Darrow v. Calkins, 154 N. Y. 503, 518. The American rule as to the disposition of partnership realty upon the death of one of the partners, fully stated in the same case at pages 514 and 515, is followed and applied in Burney v. Pike, 94 App. Div. 199.
While the complaint is framed as in an action at law, both in respect of its allegations and the prayer for judgment, it sufficiently states facts which demonstrate that .plaintiff is entitled to an accounting in equity, and to no other form of relief, in this action. Schulsinger v. Blau, 84 App. Div. 390, 392, 393; Emery v. Pease, 20 N. Y. 62, 64 — both of which are precisely in point.
The demurrer interposed is directed solely to the absence of facts sufficient to constitute a cause of action, under section 488, subdivision 8. Therefore, the interlocutory judgment overruling it should, in the present state of the record, be technically affirmed. As the City Court, however, has no jurisdiction to entertain actions in equity (Meyer v. Chamberlyn, 62 N. Y. Supp. 431; Gutman v. Rogers, 13 id. 891), this affirmance should be without costs.
It is elementary that lack of jurisdiction of the subject-*419matter cannot be cured by waiver (11 Cyc. 697); consequently, the attention of the court below, as well as of the parties, is invited to this ineradicable defect in this action.
The judgment should be affirmed, without costs.
Interlocutory judgment reversed, with costs; and demurrer sustained, with costs.