Marcile v. Salztman — 6 N.Y. St. Rep. 48

Majority

p. 48

Julius Marcile, Resp’t, v. Auguste Salztman, as Ex’r, etc., App’lt.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

Reference—Long account—What is—Code Civ. Pro., § 1013.

Where the complaint alleged an account which comprised seven items, some of these items being composed of numerous articles and charges: Held, that the account was a long one within the meaning of Code of Civil Procedure, section 1013, which provides for the compulsory reference of the issues of fact in an action.

Appeal from an order of the special term of Kings county referring the issues in a cause.

T. C. Cronin, for resp’t; George B. & A. H. Ely, for . appl’t.

The complaint sets up an indebtedness of the defendant’s testatrix for goods sold and delivered, and also for a nursery, which was sold by her and which belonged to the plaintiff.

If a recovery is realized under this complaint it will be on a contract implied by law in favor of the plaintiff. The action is founded on contract and not on a tort, and the account involved is of sufficient length to justify the order' of reference.

p. 49

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

Barnard, P. J., and Pratt, J., concur.