Childs v. Mayer — 24 N.Y. St. Rep. 343

Majority

p. 343

William H. H. Childs, Resp’t, v. William Mayer, as Executor, etc., App’lt.

(Supreme Court, General Term, Second Department,

Filed May 13, 1889.)

Headnote

Reference—Compulsory—When not ordered.

Where from the pleadings it appears that an examination of a long account is not involved in the case, a compulsory reference will not he ordered.

Appeal from an order of reference made by Mr. Justice Pratt, at special term.

The action is brought to recover $882.10 for oil sold to defendant.

The defense is that there was an express warranty that the oil should be fit for the purpose for which plaintiff knew it was bought, and that in consequence of its inferior quality it was unfit for that purpose; the glass made therewith was unmerchantable; and defendant, by reason of the breach of warranty, has sustained $1,000 damages.

In response to mutual demands, bills of particulars of the plaintiff’s claim and the defendant’s counterclaim, were served, the former showing a number of deliveries of lots of uniform amount and price, and the latter a number of “items of damage.”

The cause was noticed for trial, placed on the jury calendar, and reserved, by consent, for a day certain, when this motion was made to refer on the ground that the trial ■would involve the examination of a long account.

In answer to this motion the defendant admitted that all the oil claimed in the plaintiff’s bill of particulars, except one lot, had been delivered.

William B. Lynes, for app’lt; John L. Shirley, for resp’t.

This is an appeal from a compulsory order of reference made upon the theory that the trial of the action will involve the examination of a long account.

An examination of the pleadings is sufficient to show that the result of the trial will be controlled by the question of warrantee involved in the case, but in any view there is no such account as the law requires to justify a compulsory reference.

p. 344

The order appealed from should be reversed, with ten. dollars costs and disbursements.

Barnard, P. J., concurs; Dykman, J., not sitting.