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Canda v. Robbins

5 Silv. Sup. 6 Court Supreme Court, Second Department, General Term, Decision date 1889-12-09 English

Delivered by Pratt, J.

Contents

Majority

p. 6
John M. Canda et al., Respondents, v. Thomas H. Robbins, Appellant.
Supreme Court, Second Department, General Term,
December 9, 1889.

Headnote

Deference. Compulsory.—Where, in an action on contract, involving the examination of fifty-one items, each of them is denied and will have to be proved by a reference to plaintiff’s books of account, and oblige the jury to take notes of the dates, amounts and prices of the articles delivered, a compulsory reference will be ordered.
Appeal from order granting motion for a reference on the ground that the trial of the issues involved the examination of a long account.
Action to recover for goods alleged to have been sold and delivered between certain dates.
Charles F. Brandt, for appellant.
J. Woolsey Shepard, for respondents.

It is difficult to understand how the defendant even can think there is any merit in this appeal.

The plaintiffs’ bill of particulars contains fifty-one items and some of these comprise several deliveries, which would require an examination of the plaintiffs’ books of account

p. 7
and dblige a jury in order td do' justice to keep notes of the dates; amounts and prices of the' árticles delivered.

Every itenL of plaintiffs’ áccoünt is put in issue by the answer and will have to be proved upon the trial by reference! to his books. It requires the citation of no authorities td show that this order falls directly within the provision of the Code of Civil Procedure authorizing a reference.

Order affirmed, with costs.

Barnard, P. J., and Dykmah, J., concur.

Note.

See further, Blake v. Harrigan, 20 Civ. Pro. 424; Searle v. Davis, 39 N. Y. St. Rep. 169 ; Miller v. Fogg, 37 Id. 366; McQuade v. Cooper, 58 Hun, 611 ; Reiser v. Plath, 36 N. Y. St. Rep. 34 ; Fiero v. Paulding, 2 Sil. (Sup. Ct.), 515 ; Childs v. Mayer, 1 Id. 335; Morrison v. Van Benthuysen, 1 Sil. (Ct. of App.), 201; People v. Wood, 121 N. Y. 522 ; Quinn v. McDonald, 57 Hun, 590 ; Bamberger v. Fire Association, 58 Supr. 244; Cass v. Cass, 61 Hun, 460 ; Cornell v. U. S. Illuminating Co., Id. 627.

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