Majority
p. 112(4 Misc. Rep. 614; mem. report without opinion.) BOOSS et al. v. MIHAN. (Superior Court of New York City, General Term. July 3, 1893.) Argued before FREEDMAN and GILDERSLEEVE, JJ.
Headnote
Reference—Action for Deceit—Long Accounts.An action to recover money alleged to have been procured by the deceit and false and fraudulent representations of defendant is not referable, and the character of the answer cannot make it referable as involving a long account.
Appeal from special term.
Action by Frederick Booss and others against Henry Mihan. From an order vacating an order theretofore obtained by plaintiffs by default, referring the issues to a referee to hear and determine the same, plaintiffs appeal.
Affirmed.
H. Grosse, for appellants.
S. 0. Baldwin, for respondent.
Upon their complaint the plaintiffs seek to recover from the defendant the amount of certain overpayments made by the plaintiffs to the defendant on account of labor and services rendered, and obtained by the defendant by means of deceit and false and fraudulent representations. The cause of action thus set forth is not referable, and, that being so, the defendant’s answer cannot make it referable. Moreover, the reply shows that the counterclaim set up in the answer does not involve the examination of a long account.
The order should be affirmed, with $10 costs and disbursements.