Gibson v. Widman — 94 N.Y.S. 593

Majority

p. 593

GIBSON v. WIDMAN.

(Supreme Court, Appellate Division, First Department.

July 7, 1905.)

Headnote

Reference—Accounting.

In an action for an accounting, a reference to hear and determine the issues cannot be ordered prior to the entry of an interlocutory judgment providing for an accounting.

Appeal from Special Term.

Action by May M. Gibson against Emil Albert Widman. From an order of reference, defendant appeals.

Reversed.

Argued before O’BRIEN, P. J., and HATCH, McLAUGHEIN, PATTERSON, and INGRAHAM, JJ.

Ralph Wolf, for appellant.

William W. Wingate, for respondent.

This action being for an accounting, a reference to hear and determine the issues cannot be ordered prior to the entry of an interlocutory judgment providing for an accounting. If the parties are entitled to such an interlocutory judgment upon the pleadings, that relief can be granted by motion, and a proper interlocutory judgment entered. An accounting may then.be taken before a referee.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.