Post v. Van Siclen — 117 N.Y.S. 554

Majority

p. 554

POST et al. v. VAN SICLEN et al.

(Supreme Court, Appellate Division, First Department.

June 11, 1909.)

Headnote

Reference (§ 18^[1] )—Reorganization of Corporation—Accounting.

Notwithstanding Code Civ. Proc. § 1013, authorizing a compulsory reference where the trial involves a long account, in an action for an accounting and the termination of an agreement for the reorganization of a corporation, a reference to hear and determine the issues cannot be ordered until an interlocutory judgment providing for an accounting has

p. 555

been entered after trial of the issues or on motion on the pleadings raising no issue.

LEd. Note.—For other cases, see Reference, Cent. Dig. § 34; Dec. Dig. § 18.^[1] ]

Appeal from Special Term, New York County.

Action by H. A. V. Post and others against Abraham Van Siclen and others. From an order referring the action to a referee to hear and determine, defendant Abraham Van Siclen appeals.

Reversed.

Argued before INGRAHAM, McLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, JJ.

John W. Weed, for appellant.

Louis H. Freedman, for respondents.

The plaintiff and another, who was made defendant, were the reorganization committee of the Chattanooga Southern Railway Company, appointed by agreement. This action is brought for án accounting and to have the rights of the defendants fixed and the trust created by the reorganization agreement terminated. The appellant', Van Siclen, answered, admitting certain allegations of the complaint, denying information as ta others, and setting up that certain moneys borrowed by the reorganization committee were not proper disbursements by them under the agreement and should be paid personally, and that certain acts were unauthorized.

The plaintiffs moved for a compulsory reference on the ground that the action involved the examination of a long account, and against the objection of the defendant Van Siclen the court appointed a referee to hear and determine. The order must be reversed. Section 1013 of the Code of Civil Procedure does not apply where the object of the action is to obtain an accounting. The rule is that in an action for an accounting a reference to hear and determine the issues cannot be ordered until an interlocutory judgment providing for such accounting has been entered after trial of the issues involved, or upon motion on the pleadings if no issue be raised. London v. Meryash (Sup.) 117 N. Y. Supp. 1 , decided May term, 1909; Gibson v. Wildman, 106 App. Div. 388 , 94 N. Y. Supp. 593 .

The order is reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.