Genet v. President — 10 N.Y. St. Rep. 35

Majority

p. 35

Augustus C. Genet, App’lt, v. The President, etc., of The Delaware and Hudson Canal Co., Resp’ts.

(Supreme Court, General Term, First Department,

Filed June, 18,1887)

Headnote

Practice—Accounting—Reference—When ordered.

Where the ground of the complaint was that defendant had not accounted to the plaintiff for all coal mined as required by a certain agreement between them, and that the royalty had not been paid upon all coal to which the plaintiff was entitled, and an accounting was claimed in respect to the coal mined by defendants under their agreement, and for judgment for whatever sum should be found due. Held, that a reference was properly directed.

Appeal from an order referring the issues in this action)to a referee for trial.

George C. Genet, for app’lt; Frank F. Smith, for resp’ts.

An examination of the plaintiff’s amended complaint shows clearly that an accounting is a necessary part of the relief sought by the plaintiff.

The ground of complaint seems to be that the defendants have not accounted to the plaintiff for all coal mined as required by the agreement between the plaintiff and defendants and that the royalty has not been paid upon all coal to which the plaintiff is entitled, and in view of this allegation an accounting is claimed in respect to the coal mined by the defendants under their agreement with the plaintiff and for judgment for whatever sum may be found due upon such accounting.

It is true that other relief is demanded, but the gravamen of the action is based upon the allegation that royalties have not been paid upon all coal mined, and that the accounts rendered by the defendants were not true in this respect.

It would appear therefore that the true condition of the accounts between the parties, is the main issue presented, although rights under the contract may be also involved.

Under these circumstances we cannot say that there was any error committed in directing a reference.

Order appealed from affirmed with ten dollars costs and disbursements.

Daniels and Bartlett, JJ., concur.