Childs v. Mayer — 5 N.Y.S. 340

Majority

p. 340

Childs v. Mayer.

(Supreme Court, General Term, Second Department.

May 18, 1889.)

Headnote

Reference—Compulsory.

In an action for the price of a quantity of oil delivered at various times, the delivery of all of which except one lot defendant admits, but pleads as a counter-claim damages resulting from a breach of warranty, and serves a bill of particulars consisting of 40 or 50 items of damages, the examination of a long account is not involved, and a compulsory reference cannot be ordered.

Appeal from special term, ICihgs county.

This was an action brought by William H. H. Childs against William Mayer, as executor, etc., of Zizilia Mayer, deceased, to recover the sum of $882.10 for oil sold and delivered. The answer alleged that the oil was sold under an express warranty that it was fit for the purpose for which it was bought, and that in consequence of its inferior quality it was totally unfit for that purpose, and that by reason of such breach of warranty defendant had sustained damages in the sum of $1,000, such damages being pleaded as a counter-claim. Bills of particulars of plaintiff’s claim and of defendant’s counter-claim were served; the former consisting of some 50 items of sales at different times, and the latter consisting of about the same number of “items of damage,” part of them being for articles of glassware manufactured by defendant’s testatrix, and rendered defective by reason of the inferior quality of the oil bought of plaintiff and used in their manufacture, and part being items of time lost by stoppage of works, and wages paid to workmen during such stoppage. After the cause was noticed for trial and placed on the jury calendar, plaintiff moved for an order of reference, tin the ground that the trial would involve the examination of a long account. In response to this motion dei'endant admitted that all the oil claimed in plaintiff’s bill of particulars, except one lot, had been delivered. From an order granting the motion defendant appeals.

Argued before Barnard, P J., and Dykman, J.

William B. Lynes, (Frederic A. Ward, of counsel,) for appellant. John L. Shirley, (Samuel D. Morris, of counsel,) for respondent.

This is an appeal from a compulsory order of reference made upon the theory that the trial of the action will involve the examination of a long account. An examination of the pleadings is sufficient to show that the result of the trial will be controlled by the question of warranty involved in the case; but in any view there is no such account as the law requires to justify a compulsory reference. The order appealed from should be reversed, with $10 costs and disbursements.