Majority
p. 551(24 Misc. Rep. 392.) BRIAN et al. v. WILLIAMS. (City Court of New York, General Term. August 4, 1898.) Argued before CORLAR, SCHUCHMAR, and OLCOTT, JJ.
Headnote
Reference—Action on Note.If, in an action on a promissory note, the answer pleads failure of consideration, in that the plaintiff never furnished the various kinds of articles agreed to he furnished, and for which the note was given, the fact that the items of the various articles are numerous does not entitle the plaintiff to a reference.
Appeal from special term.
Action by James Brian and others against Thomas Williams. From an order for compulsory reference, defendant appeals.
Reversed.
Earle & Prendergast, for appellant.
Thomas C. O’Sullivan, for respondents.
The complaint sets up a cause of action on contract (promissory note). The answer pleads failure of consideration, in that plaintiffs never furnished the various kinds of articles and materials by them agreed to be furnished, and for which said note was given. The fact that the items of the various articles which make up the consideration of the note are numerous ■does not make the action one on account. Allentown Mills v. Dwyer, 26 App. Div. 101 , 49 N. Y. Supp. 624 . The issues raised ■entitled defendant to a jury trial.
Order reversed, with costs, and motion denied, with costs to the defendant (appellant).
OLCOTT, J., concurs.