Spence v. Simis — 22 N.Y.S. 76

Majority

p. 76

(1 Misc. Rep. 384.)

SPENCE v. SIMIS.

(City Court of Brooklyn, General Term.

December 27, 1892.)

Headnote

Reference—When Proper.

In an action for goods sold and delivered, where plaintiff, on the answer, may be bound to prove each item of his account, consisting of 23 items, and he does not stipulate, on defendant's motion for a reference, to withdraw his qlaim on a quantum meruit, and rely solely on his allegation of a promise by defendant to pay, so that no proof of the items will be necessary, an order of reference is proper.

Appeal from special term.

Action by William Spence against Adolph Simis, Jr., for goods sold and delivered. The court granted an order of reference, and plaintiff appeals.

Affirmed.

Argued before CLEMENT, C. J., and VAN WYCK, J.

Andrew L. Gardiner, for appellant.

'Adolph Simis, Jr., in pro. per.

The plaintiff brought this action for goods sold and-delivered, and it is conceded that on the answer he may be bound to prove each item of his account, (which consists of 23 items.) If the appellant had stipulated, on the motion for reference, to withdraw his claim on a quantum meruit, and rely solely on the allegation of a promise to pay, no proof of the items would have been necessary. The plaintiff may not be able to prove the promise, and then can prove the items of the account. The order of reference was therefore properly made. Order affirmed, with $10 costs and disbursements.