Majority
p. 591Barcalo Manufacturing Company, Appellant, v. Maldonado and Company, Respondent. (Argued March 13, 1911; decided March 28, 1911.)
Headnote
Barcalo Manfg. Co. v. Maldonado & Co., 143 App. Div.-, affirmed.Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered January 21, 1911, which affirmed an order of Special Term directing a compulsory reference of the issues in an action to recover for goods sold and delivered and for money had and received.
The following questions were certified : “ 1. Do the causes of action set out in plaintiff’s amended complaint and the denials and defenses in the answer and reply entitle plaintiff to a jury trial ? 2. Did the court have jurisdiction to refer the issues in the first question to a referee, to hear, try and determine the same without the consent of plaintiff ? ”
August Becker for appellant.
Alfred L. Beclcer and Maurice G. Spratt for respondent.
Order affirmed, with costs, on the ground that the answer does not controvert the allegations of the second cause of action
p. 592
stated in the complaint, but sets up an affirmative defense. First question certified answered in the negative; second in the affirmative. No opinion.
Concur: Cullen, Ch. J., Vann, Hiscook and Chase, JJ. Dissenting: Willard Bartlett, J. Absent; Haight and Werner, JJ.