Canda v. Robbins — 28 N.Y. St. Rep. 394

Majority

p. 394

John M. Canda and John P. Kane, Resp’ts, v. Thomas H. Robbins, App’lt.

(Supreme Court, General Term, Second Department,

Filed December 9, 1889.)

Headnote

Reference—Long account.

Where plaintiffs’ bill of particulars consists of fifty-one items, each of which is put in issue and will have to be proved by reference to his books, a compulsory reference is proper.

Appeal from order granting motion for a reference on the ground that the trial of the issues involved the examination of a long ac•count.

Action to recover for goods alleged to have been sold and delivered between certain dates.

Charles F. Brandt, for app’lt; J. Woolsey Shepard, for jesp’ts.

It is difficult to understand how the defendant even ■can think there is any merit in this appeal.

The plaintiffs’ bill of particulars contains fifty-one items and some of these comprise several deliveries, which would require an examination of the plaintiffs’ books of account and oblige a jury in order to do justice to keep notes of the dates, amounts and prices of the articles delivered.

Every item of plaintiffs’ account is put in issue by the answer and will have to be proved upon the trial by reference to his books. It requires the citation of no authorities to show that this order falls directly within the provision of the Code of Civil Procedure authorizing a reference.

■ Order affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.