Hyperlawhypertext legal database De Graff v. Mackinley 38 N.Y. Super. Ct. 203

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De Graff v. Mackinley

38 N.Y. Super. Ct. 203 6 Jones & S. 203 Court N.Y. Super. Ct. Decision date 1874-12-09 English

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HENRY P. DE GRAFF, et al., Plaintiffs and Respondents v. JOHN H. MACKINLEY, Defendant and Appellant.

Headnote

Reference.
The account to be examined must be directly and mainly involved, and must require proof, in detail, of delivery and value. In such case, the examination of the account is immediately in issue. The legislature intended to provide for such cases only where an account was directly involved in the action, and where little was to be done beyond a proper adjustment of the dealings of the parties (Dedericks ®. Richley, 19 Wend. 108 ). In the case at bar (being an action upon contract for work and labor), the motion for a reference was made upon the pleadings, and upon an affidavit that the trial would require the examination of a long account, consist
p. 204
ing of upward of sixty different items. The affidavit was not contradicted by the defendant, and must have been taken as true by the court below. The sufficiency of the proof that an account was involved, and that its examination would be required at the trial, was a question of fact for the determination of the judge at special term, and the decision should not be disturbed (Ronalds ». Mechanics’ Rational Bank of Rew York, 87 JY. T. Superior Ot. 208).
Before Monell, Ch. J., and Sedgwick and Speir, JJ.
Decided December 9, 1874.
Appeal from an order of reference.
The action was to recover the price of “divers goods, wares and merchandise,” which, at the request of the defendant, the plaintiffs had manufactured for him. »
The complaint alleged that, at the special instance and request of the said defendant, said plaintiffs manufactured and caused to be manufactured for and sold to said defendant divers goods, wares and merchandise, at the price and for the consideration of nine thousand and sixty one dollars and forty-five cents, which were received by the said defendant, and which the said defendant then and there promised and agreed to pay for.
That the said defendant has paid on account thereof the sum of three thousand dollars, leaving due and unpaid to these plaintiffs the sum of six thousand and sixty-one dollars and forty-five cents, with interest from January 1,1874; which said last amount, although often requested, defendant has neglected and refused to pay to these plaintiffs, and the same still remains due and unpaid to these plaintiffs, with interest as aforesaid, over and above all offsets and discounts.
A second cause of action was, that, at the special
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instance and request of the said defendant, the said plaintiffs manufactured and caused to be manufactured for and sold and delivered to said defendant divers goods, wares and merchandise, for the price and on the consideration following, to wit: three thousand dollars to be paid in cash, and the balance to be paid by the said defendant, in his notes, payable respectively at two, four and six months from the time of the delivery of the said goods, wares and merchandise; and which notes said defendant then and there promised and agreed to secure by a chattel mortgage, to be executed to these plaintiffs by him on the same goods, wares and merchandise. That in consideration of the premises, and relying on the defendant’s said promises and agreements, these plaintiffs manufactured and caused to be manufactured for, and sold and delivered to said defendant divers goods, wares and merchandise, at the price and for the consideration of nine thousand and sixty-one dollars and forty-five cents; which were delivered to and received by the said defendant before January 1, 1874. That the said defendant has paid on account thereof the sum of three thousand dollars, leaving due and unpaid to these plaintiffs the sum of six thousand and sixty-one dollars and forty-five cents, with interest from January 1, 1874.
The answer, after a general denial, alleged that the work done and materials furnished were in fitting up a store, for which the plaintiffs made an estimate at about the sum of seven thousand five hundred dollars ; whereupon, the defendant agreed to pay three thousand dollars when the work was completed, and the remainder in six months, to be secured by a chattel mortgage. It is alleged that the plaintiffs undertook to do the work in a good and workmanlike manner. Other matter is then alleged in avoidance of the contract, and a special denial that the labor and materials were reasonably worth the sum demanded.
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The motion was made upon the pleadings, and an affidavit,that the trial of said action will necessarily require the examination of a long account, consisting of upward of sixty different items, and that no difficult questions of law will require to be investigated1 thereon.” This was not denied.
The motion was granted, and the defendant appealed.
Platt & Gerard, attorneys for plaintiffs, respondents, and Mr. J. M. Bowers, of counsel.
Mr. E. Mackinley, for defendant, appellant.

The affidavit, upon which in part the motion was founded, that the trial would require the examination of a long account, consisting of upward of sixty different items, was sufficient, prima facie, to authorize the reference. It was not controverted by the defendant, and must have been taken as true by the court below.

, The action was upon contract, and, therefore, referable, if the trial of it will require the examination of a long account on either side.

If the question was presented on the pleadings alone, I should be of the opinion that, under the authority of Evans v. Kalbfleisch (36 Superior Ct. 450), and Ross v. Combes (37 Id. 289,)the action was not referable.

The cause of action stated, is upon a special con tract for work and materials, to be performed and furnished, at a fixed and determined price. To establish the cause of action, proof of such a contract, and of its performance as a condition precedent, will be required. But proof of performance will not require the examination of a long account within the meaning of the law. It is merely collateral or incidental to the cause of action, and general proof of performance, would

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probably be sufficient. The account to be examined, must be directly and mainly involved, and must require proof in detail of delivery and value, and the recovery must be of such value. In that case the examination of the account is immediately in issue, and is the direct issue to be tried. But where no value is to be ascertained, that having been fixed by the contract, and performance only has to be proved, there is no account to be examined. As is said in Dedericks v. Richley, ( 19 Wend. 108 ), “the legislature intended to provide for those cases only, when an account was directly involved in the issue, and where little wa,s to be done beyond a proper adjustment of the dealings of the parties.”

But I think the question is not to be determined by the pleadings, but by the uncontradicted affidavit' of the plaintiffs. In Kain v. Delano, (11 Abb. Pr. N. S. 29), the statement that the trial would require the examination of a long account, was “circumstantially and fully denied by the affidavit of the defendant,” leaving the question to be decided upon the pleadings alone.

This action being upon contract, and, therefore, referable (Welsh v. Darragh, 52 N. Y. 590 ), the sufficiency of the proof that an account was involved, and that its examination would be required at the trial,- was a question for the judge at special term, and we will not disturb his conclusion (Ronalds v. Mechanics’ National Bank of New York, 37 N. Y. Superior Ct. 208).

Order affirmed, with costs.

Sedgwick and Speir, JJ., concurred.

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