Searle v. Davis — 14 N.Y.S. 312

Majority

p. 312

Searle v. Davis et al.

(Superior Court of New York City, General Term.

May 4, 1891.)

Headnote

Reverence—Accounting.

Upon the question whether an order of reference should be made under Code Civil Proo. N. Y. § 1018, providing for references in cases where the trial will require the examination of long accounts, an objection to the reference upon the ground that the account of defendant, if long, was such as would be taken under a counter-claim, was properly disregarded when the answer pleaded as a defense what was pleaded in the counter-claim also.

Appeal from special term.

Action by Davis D. Searle against Joshua W. Davis and others. Plaintiff appeals from an order of reference.

Argued before Sedgwick, C. J., and Freedman, J.

Kellogg, Rose & Smith, for appellant. Daniel O’Connell, for respondents.

There seems to be no doubt that the judge below was correct in holding that the trial of the action would involve the taking of a long account, unless the counsel for appellant was correct in arguing that the account, if long, was such as would be taken under a counter-claim. The answer pleads as a defense what it pleads as a counter-claim also. Then the long account would be involved in issue upon the complaint, irrespective of there being a counter-claim. Order affirmed, with $10 costs.