Cochrane Carpet Co. v. Howells — 93 N.Y. Sup. Ct. 243

Majority

p. 243

Cochrane Carpet Company, Respondent, v. Henry C. Howells, Jr., and Another, Appellants.

Headnote

Bsference in an action for goods sold, — examination of a long account.

Where a complaint alleges a sale and delivery of goods at an agreed price, and the answer puts this allegation in issue, and it appears that the merchandise was sold on ten different dates, and consisted of 133 pieces of goods, a case is made for a compulsory reference upon the ground that the matter involves the examination of a long account.

Appeal by the defendants, Henry C. Plowells, Jr., and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of March, 1895, directing a reference of the issues in this action.

O. N. Bovee, for the appellants.

J. J. Adams, for the respondent.

It is alleged in tlie complaint that, between September 16, 1892, and Ajiril 8, 1893, plaintiff sold and delivered to the defendants goods, wares and merchandise, at the agreed price of $3,381.42. Upon the motion to refer it, it appeared by the affidavits served in behalf of the plaintiff that the merchandise was sold on ten different dates, and consisted of 133 pieces of goods. The defendants, by their answer, deny the allegation contained in the complaint that the goods and merchandise at the agreed price mentioned were sold and delivered. This presents a material issue. The defendants have not tendered a stipulation admitting that goods of the quantity and at the agreed price alleged in the complaint were sold and delivered. ITad this been done, or had they, by a stipulation, reduced the question to an issue over a single delivery, they -would have avoided the necessity for a reference. Under the decisions, an action involving an account with as many items as are directly put in issue by the answer, is referable.

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

Present — Yan Brunt, P. J., O’Brien and Follbtt, JJ.

Order affirmed, with ten dollars costs and disbursements.