Hyperlawhypertext legal database Cochrane Carpet Co. v. Howells 33 N.Y.S. 309

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Cochrane Carpet Co. v. Howells

33 N.Y.S. 309 Court N.Y. Gen. Term Decision date 1895-04-11 English

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Majority

p. 309
(86 Hun, 243.)
COCHRANE CARPET CO. v. HOWELLS et al.
(Supreme Court, General Term, First Department.
April 11, 1895.)

Headnote

Reference—Long Account.
A reference is properly directed in an action for goods sold and delivered, where the moving affidavits show that the goods were sold on 10 different dates, and consisted of 133 pieces, and defendants, by their answer, denied the allegation in the complaint as to the sale and delivery.
Appeal from special term, New York county.
Action by Cochrane Carpet Company against Henry C. Howells, Jr., and another, to recover the price of goods sold. From an order directing a reference, defendants appeal.
Affirmed.
For decision on appeal from order requiring defendants to furnish a bill of particulars, see 30 N. Y. Supp. 1029 .
Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
C. N. Bovee, for appellants.
J. J. Adams, for respondent.

It is alleged in the complaint that between September 16, 1892, and April 8, 1893, plaintiff sold and delivered to the defendants goods, wares, and merchandise at the agreed price of $3,381.42. Upon the motion to refer, it appeared by the affidavits served in behalf of the plaintiff that the merchandise was sold on 10 different dates, and consisted of 133 pieces of goods. The defendants by their answer deny the allegation contained in the complaint, that the goods and merchandise at the agreed price mentioned were sold and delivered. This presents a material issue. The defendants have not tendered a stipulation admitting that goods of the quantity and at the agreed price alleged in the complaint were sold and delivered. Had this been done, or had they by a stipulation reduced the question to an issue over a single delivery, they would have avoided the necessity for a reference. Under the decisions, an action involving an account, with as many items as are directly put in issue by the answer, is referrable. The order should be affirmed, with $10 costs and disbursements.