Peabody v. Cortada — 50 N.Y. St. Rep. 743

Majority

p. 743

Henry W. Peabody et al., Resp'ts, v. Emilio Cortada et al., App'lts.

(Supreme Court, General Term, First Department,

Filed January 13, 1893.)

Headnote

Reference—Compulsory.

Where the complaint sets forth several distinct causes of action, one at least of which is not referable, a compulsory reference should not be granted.

Appeal from order of reference.

Forster & Speir (Henry A. Forster, of counsel), for app’lts;

Shepard, Terry, McKelvey & Prentiss, for resp’ts.

In the third and fourth causes of action the plaintiffs seek to recover, first, upon an account stated, and then for certain additional items upon open account. • These causes of action, although embraced in one count, are distinct and separate, and one of them, certainly, is not referable. The one upon account stated does not involve the examination of a long account, and certainly the defendant is entitled to a trial by jury.

The order should be reversed, with ten dollars costs and disbursements of appeal, and the motion denied, with ten dollars costs.

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