Silliman v. Smith — 76 N.Y.S. 65

Majority

p. 65

SILLIMAN v. SMITH et al.

(Supreme Court, Appellate Division, Third Department.

May 13, 1902.)

Headnote

Judgment—Accounting—Validity. .

A judgment which merely directs defendant to account to plaintiff is bad, the accounting being required to be made before the court or r'eferee, who must determine the amount due, and direct judgment accordingly.

Appeal from trial term.

Action by Hiram H. Silliman against Robert S. Smith and others. From a judgment for plaintiff, defendants appeal.

Reversed.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, SMITH, CHASE, and FURSMAN, JJ.

Robert S. Smith (Edward O’Connor, of counsel), for appellants.

F. H. Andrus, for respondent.

This judgment is unpractical. The defendant cannot be directed by a judgment to account to a plaintiff. The accounting must be made before the court or a referee, who shall determine the amount due, and after having made such determination shall direct judgment therefor. The judgment must therefore be reversed.

The record does not show the order of reference. Whether it was a reference to hear and determine or a reference to state an account does not appear. The defendant, by failing to answer the plaintiff’s complaint, has admitted all material allegations therein. Upon those allegations, as thus admitted, the plaintiff is entitled to an accounting by the defendant. This accounting may be had before the special term or before a referee appointed for that purpose.

Judgment reversed, with costs to appellant, referee discharged, and case remitted to court below for further action.