Brown v. Finch — 45 N.Y. St. Rep. 328

Majority

p. 328

Sophia Brown, Individually and as Ex’rx, Resp’t, v. Lafayette J. Finch, App’lt.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

1. Reference—Accounting.

Where it appears that at some stage of the action an accounting will be-necessary, and that the questions of law involved have been passed upon by the general term, an order of reference is proper.

2. Same.

It is not necessary for the court to try affirmative defenses which are-questions of fact before making an order of reference in a case in which a. reference would otherwise be proper.

Appeal from order appointing a referee to hear, try and determine the issues in this action.

L. V. Booraem, for app’lt; Ditienhoefer & Gerber {Wheeler H. Peclcham, of counsel), for resp’t.

It is claimed upon the part of the appellant, that the issues in this action are not referable, in that serious questions of law are involved, and that it is only after the disposition of these questions of law. and the defenses that any possibility of. an accounting can arise. It is admitted by these objections, therefore, that at some stage of this action an accounting between the-parties thereto will be necessary. The objection that serious questions of law are involved does not seem to be well taken; because-whatever questions of law there may have been in the case as it. originally stood have been disposed of by the general term of this, court.

In respect to the defenses which are raised, they seem to be-questions of fact, and it is as competent for the referee. to determine the question as to whether there had been an account stated as it would be for the court

It certainly cannot be necessary for the court to try the affirmative defenses before it makes an order of reference in a case in. which a reference would otherwise be proper.

The order should be affirmed, with ten dollars costs and dis.bursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.