Berry v. Maldonado & Co.

This is a motion for a compulsory reference on the ground that the action involves a long account. The motion is opposed by the defendant, who claims that under the decision in the case of Steck v. C. F. & I. Co., 142 N. Y. 236 , 37 N. E. 1 , 25 L. R. A. 67 , the question of whether or not a reference can be had without consent of both parties must be determined from an examination of the complaint alone.

The rule in the Steck Case, supra, if not modified, has been limited strictly to the case where the complaint does not set forth a cause of action which is referable and the counterclaim is entirely independent of the facts alleged in the complaint. Irving v. Irving, 90 Hun, 422 , 35 N. Y. Supp. 744 ; Ames v. French, 83 App. Div. 452 , 82 N. Y. Supp. 452 ; Price v. Parker, 44 Misc. Rep. 582 , 90 N. Y. Supp. 98 . Under these recent decisions the rule seems to be that when the defendant’s answer brings into the action' the examination of a long account, and that long account refers to matters mentioned in the complaint, and not to extraneous causes of action, then a reference may be properly ordered. As it appears from the pleadings that the facts set forth in the counterclaims are in reference to at least a part of the goods, wares, and merchandise mentioned in the complaint, and for the price of which the plaintiff seeks recovery herein, the rule laid down in the last-mentioned cases governs, and a compulsory reference is proper.

Motion for reference granted. Jacob Fromme, Esq., named as referee. Submit order on one day’s notice.