Majority
p. 525Frederick Booss et al., App’lts, v. Henry Mihan, Resp’t. (New York Superior Court, General Term, Filed July 3, 1893.)
Headnote
Bepebence—Action pob overpayments obtained by deceit.An action to recover overpayments for labor and services obtained by means of deceit and false representations is not referable, and that being so an answer cannot make it referable.
Appeal by plaintiffs from an order vacating an order theretofore obtained by them by default, referring the issues to a referee to hear and determine the same.
Henry Grasse, for app’lts; Stephen C. Baldwin, for resp’t.
Upon their complaint the plaintiffs seek to recover from the defendant the amount of certain over-payments made by the plaintiffs to the defendant on account of labor and services rendered, and obtained by the defendant by means of deceit and false and fraudulent representations. The cause of action thus set forth is not referable, and that being so the defendant’s answer cannot make it referable. Moreover the reply shows that the counterclaim set up in the answer does not involve the examination of a long account.
The order should be affirmed, with ten dollars costs and disbursements.
drlLDERSLEEVE, J., Concurs.