Empire State Tel. & Tel. Co. v. Bickford

• Decision Date: 17 April 1894
• Citation: 36 N.E. 881,142 N.Y. 224
• Parties: EMPIRE STATE TELEPHONE & TELEGRAPH CO. v. BICKFORD.
• Court: New York Court of Appeals Court of Appeals

142 N.Y. 224

36 N.E. 881

EMPIRE STATE TELEPHONE & TELEGRAPH CO.

v.BICKFORD.

Court of Appeals of New York.

April 17, 1894.

Appeal from supreme court, general term, fifth department.

Action by the Empire State Telephone & Telegraph Company against Frank A. Bickford, in which plaintiff asked for an accounting by defendant, as its agent. From a judgment of the general term (25 N. Y. Supp. 283) affirming an order of reference for a hearing and determination of the issues joined, defendant appeals. Reversed.

T. E. Courtney, for appellant.

Underwood & Storke, for respondent.

PER CURIAM.

The plaintiff characterizes his action as one brought for an accounting by defendant in respect to his transactions, as agent of the plaintiff, in the management of its Cortland exchange; and the complaint specifies the particulars in which such accounting is asked, as follows: (1) In respect to receipts and disbursements by defendant of money belonging to plaintiff between the years 1884 and 1893. (2) In respect to the conversion of certain personal property belonging to plaintiff, and intrusted to the possession of the defendant as part of the necessary machinery of the work to be done by defendant. (3) In respect to the amount of revenue lost to plaintiff by reason of defendant's neglect of plaintiff's business, and by reason of defendant's attempts to establish a competing business at Cortland while in plaintiff's employ. (4) In respect to the proportion of the cost of equipment of plaintiff's new exchange at Cortland, made necessary by defendant's wrongful acts and omissions properly chargeable to defendant. Among such is the alleged procurement of a renewal lease in his own name of the premises formerly leased to plaintiff.

The first item is a proper subject for an accounting, and possibly the second, treating it as misconduct of an agent in relation to property intrusted to him by his principal by reason of which the whole or part of the value of such property has been lost to the principal. Such second item is not, however, on that ground, necessarily referable. An action to call an agent to account for his conduct may be cognizable in equity without being also, and necessarily, referable. If it have to do with conduct as to property intrusted to defendant as agent, equity might have jurisdiction, without the action itself being also referable. But the other two items of alleged damage do not constitute an ‘account,’ as that word is used in the...