May v. Hettrick Brothers Company

Appeal, by permission,- from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 3, 1918, affirming an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The plaintiff is one of the officers of A. B. Kirschbaum Company, a Pennsylvania corporation, with its principal office in Pennsylvania, and he brought this action in equity, as the assignee of said corporation, to compel the defendant to account for certain profits alleged to have been realized as the result of a contract for the sale by the defendant to certain foreign contractors of one hundred thousand tents. The action was brought upon the theory that between the plaintiff’s assignor and the defendant there existed a fiduciary or confidential relationship, and the trial court has so found. Defendant maintained that no such relationship of trust or confidence, either as joint adventurers or as principal and confidential agent existed and that, therefore, no basis for an accounting in equity was presented. The following questions were certified: “ 1. Was there any joint adventure or quasi partnership between Kirschbaum Company and defendant with respect to the transactions referred to in the complaint herein? 2. Was there any fiduciary relationship between Kirschbaum Company and defendant with respect to the transactions referred to in the complaint herein? 3. Was the plaintiff entitled to an interlocutory judgment for an accounting? ”