fendant, and under the terms of the said contract had earned, there was due him, up to the day of his death, the sum of money which is demanded.

Obviously there is nothing here but conclusory statements of what the contract provides. The allegation that certain sums of money due the deceased as compensation for services rendered to the defendant have not been paid is not predicated upon any obligation which is declared. While it is unnecessary to set forth the contract in full, or to annex it to the complaint, the provision of the contract upon which compensation is claimed to have been earned, or its terms in substance, must be set out to make a logical premise for the conclusion that anything is due. The complaint does not state a cause of action, and should have been dismissed.

The order is reversed, with $10 costs and disbursements, and the motion to dismiss the complaint for insufficiency granted, with $10 costs, with leave to plaintiff to serve an amended complaint within 10 days upon the payment of said costs.

Order filed. All concur.

FRIBERG v. ROCKAWAY POINT CO.

(Supreme Court, Appellate Division, Second Department. January 11, 1924.) 1. Judgment 647-Issue of promised renewal leases held res judicata by virtue of defense in summary proceedings.

An issue of promised renewal leases held res judicata by virtue of the equitable defense thereof interposed in summary proceedings brought by the present defendant against the present plaintiff.

2. Judgment 735-Issue that was neither determined nor necessarily Involved not res judicata.

Where the ownership of certain bungalows was neither determined in summary proceedings nor necessarily involved, judgment therein was not res judicata of that issue, and it may be tried in a subsequent action.

Jaycox, J., dissenting.

Action by Sophie Friberg against the Rockaway Point Company. From an order, defendant appeals. Order affirmed.

PER CURIAM. [1, 2] Order affirmed, with $10 costs and disbursements. We agree with defendant that the issue of promised renewal leases is res judicata by virtue of the equitable defense thereof interposed in the summary proceedings brought by this defendant against this plaintiff. We agree with the learned justice at Special Term that the ownership of the bungalows was neither determined in the summary proceedings, nor necessarily involved therein, and that that issue may be tried out.

KELLY, P. J., and RICH, KELBY, and KAPPER, JJ., concur. JAYCOX, J., dissents.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(202 N.Y.S.)

ANGEL v. DEL FUNGO-GIERA.

(Supreme Court, Appellate Division, Second Department. January 18, 1924.) Discovery 84-Production of books in aid of examination permitted.

Under Civil Practice Act, § 296, the production of the books of individual in aid of an examination before trial is permitted.

Action by Laurance Angel against Philip L. E. Del Fungo-Giera. From an order granting in part plaintiff's motion for examination of defendant, both parties appeal. Affirmed in part, and reversed in part.

PER CURIAM. Order, in so far as it denies plaintiff's motion for defendant's examination "regarding the amounts realized by the defendant as set forth in paragraphs (p) and (q), and as requests the production of books" (folio 16), reversed on the law, with $10 costs and disbursements, and motion granted, with $10 costs. Order, in so far as it grants plaintiff's motion for examination of defendant, affirmed, with $10 costs.

While the action is characterized as one for an accounting, the complaint, in its essential features, sets forth a cause of action solely for one-half the moneys earned by both parties (so plaintiff claims) as commissions, and the whole of which was paid to the defendant. All of the matters alleged as false representations and wrongful conduct on the part of the defendant have relation solely to plaintiff's anticipation of the defense of a general release and its avoidance, and might well have been reserved for interposition by way of reply. The action is in no manner one for an accounting. The examination, in so far as it concerns the amount of money received by the defendant, is solely to ascertain that amount, and to this end defendant's books bearing thereon may be material. The production of the books of an individual in aid of an examination before trial is now permitted. Civil Practice Act, § 296 (as amended by Laws 1921, c. 199).

KELLY, P. J., and JAYCOX, MANNING, YOUNG, and KAPPER, JJ., concur.

CHADBOURNE et al. v. RITZ CARLTON RESTAURANT & HOTEL CO.,

Inc., et al.

(Supreme Court, Appellate Division, First Department. January 25, 1924.) Dismissal and nonsuit 58(4)-Complaint demanding equitable relief, but stating action at law only, dismissed.

Where the relief demanded is solely equitable, but the complaint states an action at law, which requires no remedy in equity for its fulfillment, a motion to dismiss should be granted, and hence a bankruptcy trustee's action to compel defendant to account for funds diverted by bankrupt's officers to pay their individual debts to defendant should be dismissed.

Appeal from Special Term, New York County.

Action by William M. Chadbourne and others, as trustees, against the Ritz Carlton Restaurant & Hotel Company, Inc., and another. From an order denying the named defendant's motion to dismiss the

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complaint, on the ground that it does not state facts sufficient to constitute a cause of action, said defendant appeals. Reversed, and motion granted.

Argued before CLARKE, P. J., and DOWLING, FINCH, McAVOY, and MARTIN, JJ.

Rhinelander, Durkin & Perkins, of New York City (Edward N. Perkins, of New York City, of counsel), for appellant.

Louis Frankel and George C. Sprague, both of New York City (David Cohen, of New York City, of counsel), for respondents.

MCAVOY, J. The theory of this action is that the defendants Mayers and one McIntosh, being officers of the bankrupt company, the United States Mail Steamship Company, Inc., diverted funds of the bankrupt to the Ritz Carlton Restaurant & Hotel Company, Inc., hereinafter called the Ritz Carlton Company, by paying their individual debts with the corporate funds of the bankrupt, and that the Ritz Carlton Restaurant & Hotel Company had knowledge of this diversion, to wit, that they had knowledge that the debts were the individual debts of the Mayers and McIntosh, and that the moneys which paid these individual debts were the funds of the bankrupt company.

The complaint alleges that the Ritz Carlton Company knew that it was receiving corporate funds, but it does not allege that it knew or had reason to know that the debts being paid with these funds were not corporate debts. However, this latter knowledge may be inferred from the nature of the debts which the individual defendants were contracting with the Ritz Carlton Company. The relief demanded against the Ritz Carlton Company is that it be required and compelled to account for the moneys of said bankrupt received by it in payment of the debts of said defendants the Mayers and McIntosh, which they paid on checks improperly drawn against corporate funds.

There is no equitable remedy of rescission; no demands to impound a fund said to be held in trust; no mutual account set out between the Ritz Carlton Company and the defendants, or the bankrupt, which the court is called upon to settle. The cause of action that is alleged is entirely cognizable at law, but the relief demanded is purely equitable. When the relief demanded is solely equitable, and the complaint states but an action at law, which requires no remedy in equity for its fulfillment, the complaint is demurrable. The rule has been recently stated in Robinson v. Whitaker, 205 App. Div. 286, 199 N. Y. Supp. 680, by Mr. Justice Merrell, for the court, as follows:

"The action having been brought on the equity side of the court, the law is well settled that the complaint should show that the plaintiff has no adequate remedy at law. If the complaint shows upon its face that the plaintiff has an adequate remedy at law, a motion to dismiss made under rule 106 of the Rules of Civil Practice should be granted, with leave to serve a proper complaint on the law side of the court."

The order should therefore be reversed, with $10 costs and disbursements, and the motion as to the defendant the Ritz Carlton Restaurant & Hotel Company granted, with $10 costs.

Order filed. All concur.

(202 N.Y.S.)

SULLIVAN v. BOOTH & FLINN, Limited.

(Supreme Court, Special Term, Kings County. January 7, 1924.)

1. Commerce 16-Navigable waters 36(1)—Employee working on construction of tunnel connecting states under navigable river subject to state Compensation Law; "Interstate commerce."

Where employee received injuries resulting in his death while working on the construction of a tunnel connecting the states of New York and New Jersey under the Hudson river at a point between the bulkhead line on the New York side of the Hudson river and the middle of the stream, held, that he was not in "interstate territory solely under the jurisdiction of the federal government," and was not engaged in interstate commerce; hence the New York Workmen's Compensation Law, and not the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665), applies. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.].

2. Navigable waters

der Hudson river.

36(1)-Federal government has no control over land un

The federal government has power under Const. U. S. art. 1, § 8, to regulate commerce and navigation over the waters of the Hudson river; but it has no other or further control over the land under the water. 3. States 12(2)—Boundaries of New York and New Jersey held middle of Hudson river.

By agreement between New York and New Jersey, represented by properly constituted commissioners, and sanctioned by the Legislature of each state and by first session, Twenty-Third Congress (Act June 28, 1834, c. 126), the boundary line is the middle of the Hudson river.

4. Master and servant 351-Remedy under Compensation Law exclusive when applicable.

In a case in which the Workmen's Compensation Law applies, there is no cause of action, either under the common law or the federal Employers' Liability Act (U. S. Comp. St. §§ 8657-8665).

Action by Catherine Sullivan, as administratrix of the goods, chattels, and credits of Dennis F. Sullivan, against Booth & Flinn, Limited. Judgment for defendant.

Frank X. Sullivan, of New York City (Theodore H. Lord, of New York City, of counsel), for plaintiff.

Edward M. Grout and Paul Grout, both of New York City (Charles B. La Voe, of New York City, of counsel), for defendant.

CALLAGHAN, J. [1] The plaintiff seeks to sustain this complaint. upon two theories: (1) That the plaintiff's intestate was, at the time of the accident which resulted in his death, at work in "interstate territory solely under the jurisdiction of the federal government," and therefore the provisions of the Workmen's Compensation Law do not apply; and (2) that he was engaged in interstate commerce at the time of the accident, and therefore the federal Employers' Liability Act (35. Stat. 65 [U. S. Comp. St. §§ 8657-8665]), and not the Workmen's Compensation Law of the state of New York, applies.

The defendant had a contract for the construction of the tunnel connecting the states of New York and New Jersey under the Hudson river. The decedent was employed by the defendant in the construc

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tion of that tunnel, and while so employed he met his death through the alleged negligence of the defendant, while working on the tunnel at a point between the bulkhead line on the New York side of the Hudson river and the middle of the stream. The land under water between the bulkhead line on the New York side of the Hudson river and the bulkhead line on the New Jersey side of that river is not “interstate territory solely under the jurisdiction of the federal government."

[2, 3] The federal government has power under the provision of the Constitution (section 8, article 1) to regulate commerce and navigation over the waters of the Hudson river at the point in question, as it is there navigable water, but it has no other or further control over the land under water. By agreement between the states of New York and New Jersey, represented by properly constituted commissioners, the boundary line was fixed as the middle of the river, and that agreement was sanctioned by the Legislature of each state and by the Congress of the United States (Act June 28, 1834, c. 126, First Session, 23d Congress [4 Stat. 708]).

The case of People v. Hudson River Connecting R. R. Corp., 228 N. Y. 203, 126 N. E. 801, does not aid the plaintiff. That case is authority only for the proposition that a statute of the state of New York, passed for the purpose of imposing upon the defendant the duty of constructing a particular kind of bridge, offends the provisions of section 8, article 1, of the federal Constitution, which places in the Congress the power to regulate commerce and navigation. It was not there held that the land under water was solely under the control of the federal government for all purposes.

At the time of the accident in question the construction of the tunnel had just been begun, and, if it be conceded that the tunnel was to be used when finished as an agency for interstate commerce, the decedent could not be said to be engaged in carrying on interstate commerce at the time of the accident. His status was exactly the same as one engaged in building a railroad or constructing a bridge to be used when completed in interstate commerce. Jackson v. C., M. & St. P. Ry. Co. [D. C.] 210 Fed. 495; Bravis v. C., M. & St. P. Ry. Co., 217 Fed. 234, 133 Č. C. A. 228. Both could be used as an agency for carrying on interstate commerce when completed, but an employee engaged in constructing the agency is too remotely connected with the act of carrying on such commerce to hold that he would under the assumed cases be so engaged.

[4] The test to be applied is: Does the Workmen's Compensation Law apply here? If so, there is no cause of action either under the common law or the federal Liability Act. The decedent, it seems, would come within section 3, group 3, of the Workmen's Compensation Law (as re-enacted by Laws 1922, c. 615), as he was engaged in construction work, and within group 13, as he was engaged in subaqueous construction work, and also in group 14, as he was working in a caisson.

There must be judgment for defendant on the complaint.