Alkahn Silk Label Co. v. Felsenstein

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 *905so 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.