dissenting:
This is an action in equity for an accounting, and other relief growing out of a written agreement between the parties, and a subsequent oral agreement in relation thereto. By the written agreement, the defendant, as the plaintiffs agent, agreed to take an average of one thousand copies of the work-to which it referred each year after its completion, great financial disturbances, and national calamities excepted. The entire work consisted of eleven volumes of eight hundred pages each. The oral contract changed the terms of the written contract, and by it the defendant became the printer of the work, and was to furnish the stock necessary at variable rates, the plaintiff being required onty to furnish the manuscript, and plates ready to be printed from.
The complaint, which is somewhat m extenso, contained all the necessary allegations to warrant an accounting for the period for which it was demanded. The defendant had become the printer of the work, and the plaintiff was not advised of the number of copies of the work on hand, that is, printed, or the number of copies sold, to which he was clearly entitled, and in reference to *225which the judgment at special term is in his favor. The plaintiff demanded, however, by the prayer of his complaint, that if the copies of the work sold exceeded one thousand annually since July 1,1874, or if the copies sold wei’e less than one thousand annually, that the defendant be adjudged to pay the plaintiff for one thousand copies annually, at the rate agreed upon. As suggested, the Special Term determined that the plaintiff was entitled to the accounting from July 1, 1874, which was the limit of the plaintiff’s claim on that subject, but declined to make any award for any other claim arising upon the contract for any non-performance of it on the part of the defendant.
The decision of the Special Term in reference to them is as follows: “ That the plaintiff is entitled to recover in this action only for copies of said work actually sold by said defendant since July 1, 1874, until the commencement of this action, and that he is not entitled to recover anything in this action, under that clause of the contract by which he was to take 'on an average at least one thousand copies of the entire work annually.”
The plaintiff complains of this view, however, and insists that the court having acquired jurisdiction of the whole subject, should investigate the damages in this action, and that such a course should have been adopted by the court, in disposing of his rights; and that if that view is incorrect, the judgment should be so far modified as to declare that the remedy granted in this action should be without prejudice to an action at law for any damages sustained by him in consequence of the failure of the defendant to discharge his obligations thereunder. The case appears to have been treated as one for an accounting, not only by the learned justice who presided at the trial, but by Mr. Justice Yan Yorst when it was considered under the original complaint on a demurrer interposed by the defendant. As such an action it must be regarded as affecting the defendant’s responsibility under the contracts, only for the money due for the copies taken or sold by him since July 1874, which is the precise relief granted by the interlocutory judgment.
As an action at law involving the question of damages, to which a court of equity might continue its jurisdiction, the complaint is imperfect, because it does not appear from any allegation in it that *226the defendant has not taken the number of copies which, under the terms of the contract, he was compelled to accept: and without showing by positive averment that he had refused to take the required number of copies, the plaintiff would be in no condition to insist upon any relief in that respect. That this is so, is apparent from the allegation in the complaint that the plaintiff did not know the exact number of copies held by the defendant, nor the number of copies made and printed, nor the actual number sold by him. His right of action must therefore necessarily depend upon the result of the accounting, by which the number of copies taken by the defendant will be demonstrated, and it will then appear whether he has performed the contract on his part or not. The result of the accounting may show that the plaintiff has a prima facie cause of action against the defendant for a failure to perform the contract in the respect suggested. And if an action should be brought, the question of liability arising from any and all causes, and the defenses, if any, can be properly considered.
I think that the learned judge in the court below entertained this view, from the language of the finding referred to, which declared that the plaintiff was not entitled to recover m tMs action for the violation considered.
Entertaining these views, it follows as a necessary legal sequence that this action was in its form and proofs one for an accounting purely, and did not involve any question of damages arising from non-performance, and therefore that the plaintiff’s right to recover for any such violation is not in any way affected or interfered with by the interlocutory judgment entered herein.
I think the motion should be denied, with $10 costs and dis bursements.
Motion for a new trial granted'with costs.