Peabody v. Cortada — 21 N.Y.S. 680

Majority

p. 680

PEABODY et al. v. CORTADA et al.

(Supreme Court, General Term, First Department.

January 13, 1893.)

Headnote

Reference—When Granted—Several Causes of Action. AYhere plaintiff seeks to recover on several distinct causes of action, one of .which is not referable, plaintiff is not entitled to an order of compulsory reference.

Appeal from special term, New York county.

Action by Henry W. Peabody, .Charles D. Barry and Frederick W. Lincoln, Jr., against Emilio Cortada and Ramon Cortada, comprising the firm of Emilio Cortada & Co. From an order of compulsory reference at special term, on the ground that the action involves the examination of a long account, defendant appeals. Reversed.

For former report, see 18 N. Y. Supp. 622 .

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

Forster & Speir, (Henry A. Forster, of counsel,) for appellants.

Shepard, Terry, McKelvey & Prentiss, for respondents.

In the third and fourth causes of action, the plaintiffs seek to recover, first, upon an account stated, and then for certain additional items upon open account. These causes of action, although embraced in one count, are distinct and separate, and one of them, certainly, is not referable. The one upon account stated does not involve

p. 681

the examination of a long account, and certainly the defendant is entitled to a trial by jury. The order should be reversed, with $10 costs- and disbursements of appeal, and the motion denied, with $10 costs..