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Hazard v. Warner

66 N.Y.S. 474 Court General Term. Decision date 1900-10-29 English

Decision Majority — *475 COYLAY, J. · Dissent — HASCALL, J.

Contents
p. 474
HAZARD v. WARNER.
(City Court of New York,
General Term.
October 29, 1900.)

Headnote

Reference—Examination of Long Account.
Where a defendant admits the allegations of the complaint, and sets up a counterclaim for professional services to an amount exceeding plaintiff’s claim, the trial does not “require the examination of a long account,” within Code Civ. Proc. § 1013, providing that in such cases a compulsory reference may be ordered.
Haseall, J., dissenting.
Appeal from special term.
Action by Margaret J. Hazard against James Harold Warner. From an order referring the action to a referee, plaintiff appeals.
KgV6rS0CL
Argued before FITZSIMORS, G. J., and 'CORLAR and HASCALL, JJ.
B. GL Oppenheim, for appellant.
David C. Bennett, Jr., for respondent.

This is an appeal from an order referring this action, and all the issues therein, to a referee to hear and determine. The answer admits the allegations of the complaint, and sets up a counterclaim for professional services as attorney to an amount exceeding plaintiff's claim. The case comes within the rule laid down in Randall v. Sherman, 131 N. Y. 669 , 30 N. E. 589 , and Feeter v. Arkenburgh, 147 N. Y. 237 , 41 N. E. 518 .

Order appealed from reversed, with costs.

FITZSIMOYS, C. J., concurs.

(dissenting). I think the service of reply puts in issue the matter that requires the offices of a referee, and that the order should be affirmed. For this reason I dissent.

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