Wells v. Knox — 44 N.Y. St. Rep. 917

Majority

p. 917

Judson G. Wells, Resp’t, v. Thomas R. Knox, Assignee, App’lt.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Reference—Assignee for creditors—Accounting.

Where the pleadings in aproceediug for an accounting by an assignee for creditors present an issue as to whether the plaiotiff is a creditor of the assignor, the order of reference should direct the referee to hear and determine the issues, and not simply to take proof of the matters set forth in the pleadings.

Appeal from order referring it to a referee to take and state the account of the defendant as assignee.

Benno Loewy, for app’lt; L. H. Hahlo,ior resp’t

By the pleadings an issue is presented as to whether or not the plaintiff is a creditor of the assignor. The order does not provide for the trial of that issue. The action is for an accounting, and in disposing of the action the taking and stating of the account is necessary, and a case is thus presented which the court has the power to refer. Upon such a reference all the issues should have been referred; and as it appears from the terms of the order that the reference was “ to take proof of the matters set forth in the pleadings and take and state the account of the defendant Thos. R. Knox as assignee,” instead of providing for the trial of the issues in addition to the account, the order should be modified by inserting in lieu of the words “ to take proof of the matters set forth in the pleadings ” the words “ to hear and determine the issues in the action, and to take and state the account, etc.”

The order as so modified should be affirmed, without costs to either party on this appeal.

O’Brien and Ingraham, JJ., concur.