The opinion
Laughlin, J. (concurring):
I concur in the result upon the ground, however, that this is an action at law for compensation for services determinable by profits and not an action for an accounting. It is essential to show the amount of profits in order to determine the amount of the recovery, but such an account may be taken by the court and jury, or if that be impracticable on account of the number of items, then by a referee, and is. in.no sense an equitable accounting. (Smith v. Bodine, 74 N. Y. 30 ; Richardson v. Hughitt, 76 id. 55 ; Code Civ. Proc. §§ 1013, 1015; Parker v. Pullman & Co., 36 App. Div. 208 ; McCullough v. Pence, 85 Hun, 271 ; Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362 .)
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.