Lane v. Mercury Record Corp.

• Decision Date: 13 October 1964
• Citation: 21 A.D.2d 602,252 N.Y.S.2d 1011
• Parties: Richard LANE, as Administrator of the Estate of Dinash Washington, Deceased, Plaintiff-Respondent, v. MERCURY RECORD CORPORATION, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1011

252 N.Y.S.2d 1011

21 A.D.2d 602

Richard LANE, as Administrator of the Estate of Dinash

Washington, Deceased, Plaintiff-Respondent, v. MERCURY RECORD CORPORATION, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

Oct. 13, 1964.

Sanford M. Katz, New York City, of counsel, Eleanor Jackson Piel, New York City, with him on the brief (Paul J. Kern and Donner & Piel, New York City, attorneys), for appellant.

Alan Kahn, New York City, of counsel (Martin J. Machat, New York City, attorney), for respondent.

Before BREITEL, J. P., and VALENTE, McNALLY, STEVENS and EAGER, JJ.

VALENTE, Justice.

In this action, plaintiff seeks to compel defendant to account for royalties claimed to be due from the sale of phonograph records embodying the performance of a vocalist, plaintiff's intestate. A motion was made to dismiss the complaint for insufficiency on the ground that no cause of action for equitable relief was alleged. Plaintiff opposed the motion, insisting that the facts stated were sufficient to maintain an action for equitable relief, and Special Term upheld plaintiff's contention.

Under the Civil Practice Act, it was held that where a complaint was framed in equity and the demand for relief was equitable in nature, a motion to dismiss made before answer would be granted if the facts alleged merely entitled the plaintiff to some form of legal relief. (Terner v. Glickstein & Terner, Inc., 283 N.Y. 299, 28 N.E.2d 846; Nat. Committee on Observance of Mother's Day, Inc. v. Kirby Block & Co., 17 A.D.2d 390, 234 N.Y.S.2d 432.) A royalty or percentage arrangement would not, in and of itself, establish a fiduciary relationship, and the fact that a statement of account was necessary to prove the claim would not require an equitable action. (See Hutchinson v. Birdsong, 211 App.Div. 316, 207 N.Y.S. 273.)

It is unnecessary to pass on Special Term's characterization of the complaint as sufficient to maintain an action for equitable relief since in our view the provisions of the CPLR have eliminated the distinctions which resulted in decisions such as Terner v. Glickstein & Terner, Inc. supra. In that case the Court said (283 N.Y. at p. 301, 28 N.E.2d at p. 846):

'We do not consider whether a good cause of action at law might be spelled out from the allegations of the complaint. The complaint here is framed in equity and equitable relief alone is demanded and if the action does not lie in equity for the reason urged by defendant, the complaint must be dismissed.'

Section 8 of the then Civil Practice Act provided there was to be 'only one form of civil action' and that '[t]he distinction between actions at law and suits in equity, and the forms of those actiosn and suits, have been abolished'. In effect, that section reiterated a similar provision in the Code of Civil Procedure, adopted in 1848. (Sec. 62, Code of Civ. Proc.) But, despite the clear intent of those sections to bring about a fusion, or merger, of law and equity, the courts seemed reluctant to give full effect to that purpose. Decisions such as Terner v. Glickstein & Terner, Inc., supra; Jackson v. Strong, 222 N.Y. 149, 118 N.E. 512 and International Photo Rec. Mach. v. Microstat Corp., 269 App.Div. 485, 56 N.Y.S.2d 277, insisted upon distinguishing equity and law actions at the pleading stage and to require that a complaint conform to a 'theory of the pleadings'. The results arrived at in those cases have been adversely criticized. (Kharas, A Century of Law--Equity Merger in New York, 1 Syr.L.Rev. 186; Note--Law and Equity in New York--Still Unmerged, 55 Yale L.J. 826; Note, Erroneous Prayer for Equitable Relief, 42 Cornell L.Q. 376; 20 N.Y.Jud.Council Rep. 297 (1954); see also comments of Breitel, J. in April Productions, Inc. v. G. Schirmer, Inc., 284 App.Div. 639, 642-644, 131 N.Y.S.2d 341, reversed on other grounds 308 N.Y. 366, 126 N.E.2d 283, 69 A.L.R.2d 1305, and in I. H. P. Corp. v. 210 Cent. Park Corp., 16 A.D.2d 461, 228 N.Y.S.2d 883, affd. 12 N.Y.S.2d 329, 239 N.Y.S.2d 547, 189 N.E.2d 812.)

The adoption of the CPLR has, however, removed the main judicial stumbling blocks to the effective merger of law and equity actions envisaged since the passage of the Field Code in 1848. It is true that CPLR § 103(a) is identical with section 8 of the Civil Practice Act. Thus, CPLR § 103(a), by itself, could not accomplish any change which the Civil Practice Act failed to effect.

CPLR § 3013 provides that '[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense'. As this Court pointed out in Foley v. D'Agostino, 21 A.D.2d 60, 248 N.Y.S.2d 121; CPLR § 3013 makes the primary function of a pleading 'that of adequately advising the adverse party of the pleader's claim or defense' and that 'pleadings should not be dismissed or ordered amended unless the allegations therein are not sufficiently particular to apprise the court and parties of the subject matter of the controversy' (3 Weinstein-Korn-Miller, N.Y.Civ.Prac. par. 3013.03). As was emphasized in Foley, particular stress must be given to CPLR § 3026 which provides that pleadings 'shall be liberally construed' and that '[d]efects shall be ignored if a substantial right of a party is not prejudiced'. This Court per Eager, J. said (at p. 66, 248 N.Y.S.2d at p. 127 of Foley):

'The proper promotion of the general CPLR objective requires more than mere token observance of or lip service to its mandate for liberal construction of pleadings. To achieve such objective, we must literally apply the mandate as directed and thus make the test of prejudice one of primary importance. Thereby, we would invariably disregard pleading irregularities,...