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Krinski v. Menschel

168 A.D. 491 Court Second Department, Decision date 1915-06-11 English

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p. 491
Joseph Krinski, Respondent, v. Benjamin Menschel, Appellant, Impleaded with Hyman Jacobs, Defendant.
Second Department,
June 11, 1915.

Headnote

Reference —long account—referable character of issues not defeated by affidavits of defendant’s attorney.
The question whether or not a reference may be ordered is ordinarily determined by the complaint.
If the allegations as to an account of over fifty items appearing on the face of the complaint are put in issue by a general denial, the examination and proof of a long account are directly involved, and the referable character of the issues cannot be defeated by an affidavit by the defendant’s attorney that some of the matters in the account will not be questioned.
Appeal by the defendant, Benjamin Menschel, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of April, 1915, as resettled by an order entered in said clerk’s office on the 3d day of May, 1915.
The order referred the issues to a referee.
Henry S. Mansfield, for the appellant.
Abraham L. Doris, for the respondent.

It is the complaint which ordinarily determines if the action is one which may be compulsorily referred (Steck v. Colorado Fuel & Iron Co., 142 N. Y. 236 ), and if the matters of an account of over fifty items appearing on the face of the complaint are put in - issue by a general denial, the examination and proof of this long account are directly involved. The referable character of issues thus made on the answer cannot be defeated by the attempt, through an affidavit by defendant’s attorney, to make it appear that some matters in the account will not be questioned, since an attorney cannot in this way undo his client’s sworn denials. (Kennedy v. Kenna, 49 How. Pr. 308 .)

The order of reference is, therefore, affirmed, with ten dollars

p. 492
costs and disbursements, with liberty, however, to the appellant to apply at Special Term to vacate the order of reference upon his stipulation admitting the correctness of the account.

Jenks, P. J., Thomas, Stapleton, Mills and Putnam, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements, with liberty, however, to appellant to apply at Special Term to vacate the order of reference upon his stipulation admitting the correctness of the account.

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