Wells v. Knox — 18 N.Y.S. 395

Majority

p. 395

Wells v. Knox.

(Supreme Court, General Term, First Department.

March 31, 1892.)

Headnote

Order of Reference—Accounting.

Where, in an action for an accounting by a general assignee, the pleadings present an issue as to whether or not plaintiff is a creditor, an order of reference to take proof of the matters set forth in the pleadings, and to state the assignee’s account, is insufficient. The order should require the hearing and determination of the issues.

Appeal from special term, New York county.

Action by Judson G-. Wells against Thomas B. Knox, as general assignee of Samuel A. Warren, for an accounting. Defendant appeals from an order of reference to take proof of the matters set forth in the pleadings and to state the assignee’s account.

Affirmed as modified.

For former reports, see 7 N. Y. Supp. 45 , 8 N. Y. Supp. 58 .

Argued before O’Brien and Ingraham, JJ.

JBenno Loewy, for appellant. L. H. Hahlo, for respondent.

By the pleadings an issue is presented as to whether or not the plaintiff is a creditor of the assignor. The order does not provide for the trial of that issue. The action is for an accounting, and, in disposing of the action, the taking and stating of the account is necessary, and a case is thus presented which the court has the power to refer. Upon such a reference all the issues should have been referred; and as it appears from the terms of the order that the reference was “to take proof of the matters set forth in the pleadings, and take and state the account of the defendant, Thos. B. Knox, as assignee, ” instead of providing for the trial of the issues in addition to the account, the order should be modified by inserting, in lieu of the words, “to take proof of the matters set forth in the pleadings,” the words, “to hear and determine the issues in the action, and to take and state the account,” etc. The order, as so modified, should be affirmed, without costs to either party on this appeal.