Contracts · MBE-tested
Alkahn Silk Label Co., Inc., Appellant, v. Harry Felsenstein, Respondent, et al., Defendant
7 A.D.2d 904·New York Supreme Court, Appellate Division·1959·NY
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Opinion
Alkahn Silk Label Co., Inc., Appellant, v. Harry Felsenstein, Respondent, et al., Defendant.
[MAJORITY]
Order unanimously reversed, on the law, with $20 costs and disbursements to the appellant, and the motion denied, with $10 costs. The complaint, in seeking relief for abuse of a fiduciary relationship, lies in equity and the specific relief sought is that of an accounting (see Elco Shoe Manufacturers v. Sisk, 260 N. Y. 100; 2 Restatement, 2d, Agency, pp. 171-172). It is immaterial that in some circumstances plaintiff might also have had a remedy at law, or that out of the same relationship a remedy might be sought which would be limited to breach of contract. This disposition, however, is without prejudice to defendant making an application, if he ia so advised, to have the law issues in the case framed for purposes of jury trial. Concur — Botein, P. J., Breitel, M. M. Frank, McNally and Stevens, JJ.