p. 34Jacob Reiser, Resp’t, v. Ernest F. Plath, Adm’r, App’lt.(New York Common Pleas, General Term,Headnote
Befebence—When not allowable.In an action upon promissory notes, an account stated and for money lent, where the defense is a general denial, the court has no power to order a reference, but the parties are entitled to a trial by jury.
Although upon a possible claim that the amount of the account ^ stated has been merged in one of the notes, the examination of a long account may become necessary, this is not sufficient to authorize a compulsory reference;, as such examination will not be directly, but only collaterally involved.
Appeal from order of compulsory reference.
H. M. Gescheidt, for app’lt; Edward W. 3. Johnston, for resp’t.
The appeal is from an order of compulsory reference. The complaint exhibits four several and separate causes of action, namely, two upon promissory notes, one upon an account stated, and one for money lent The answer is in legal effect a general denial, and a plea of payment.
We are of opinion that the court had no power to order a reference for determination of the issues, but that the parties were entitled to a trial of them by a jury. Clearly so as to the promissory notes, and the claim for money lent. And, as to the account stated, the issue involves no accounting, but only whether there has been an accounting between the parties, a balance ascertained and admitted, and a promise, express or implied, to pay that balance. No item of the account being challenged for fraud or mistake, the only issues are, was the account stated, and has the sum agreed to be due plaintiff been paid. Under the pleadings plaintiff would not be permitted to prove, nor defendant to disprove, the correctness of the account in its details, but the evidence would be restricted to the facts of an account stated and payment of the balance. It appears by plaintiff’s affidavit that defendant may contend that the sum due upon the account stated is embraced
p. 35in the $8,800 note; and plaintiff says that to determine whether this be so will require the examination of a long account. But, ■“ the account to be examined must be the immediate object of the action or the ground of the defense; must be directly, not collaterally involved,”
Camp v. Ingersoll, 86 N. Y., 433 ; and the •examination required must be of the items of the account, and not merely of its effect or result.
Streat v. Rothschild, 12 Daly, 95 ;
Magown v. Sinclair, 5 id., 63. Assuming that in some way the account may be relevant evidence on the question of the merger of the account stated in the note, we are unable to perceive how the trial of that question can require “ proof by testimony of the correctness of the items composing it.” 5 Daly, 63 . The right to trial by jury should not be denied, except in a case entirely clear of the constitutional guarantee.
If the order were one in the discretion of the court below, we ■should not disturb it: but being an order beyond the power of the court to make, we have no alternative but to reverse it.
And it is so ordered.
Allen, Bischoff and Pryor, JJ., concur.