Majority
p. 169Davis D. Searle, App’lt, v. Joshua W. Davis et al., Resp’ts. (New York Superior Court, General Term, Filed May 4, 1891.)
Headnote
Loira account—Reference.Where the trial of an action involves the taking of a long account, and an objection to the order of reference is made upon the ground that the account of defendants, if long, was such as would be taken under a counterclaim, it will be disregarded when the answer pleads as a defense what it pleads as a counterclaim, also.
Appeal by plaintiff from an order of reference made at special term.
Kellogg, Rose & Smith, for app’lt; Daniel O'Connell, for resp’ts.
—There seems to be no doubt that the judge below was correct in holding that the trial of the action would involve the taking of a long account, unless the counsel for the appellant was correct in arguing that the account, if long, was such as would be taken under a counterclaim. The answer pleads as a defense what it pleads as a counterclaim, also. Then the long account would be involved in issue upon the complaint, irrespective of there being a counterclaim.
Order affirmed, with ten dollars costs.
Sedgwick, Ch., and Freedman, J., concur.