Darling v. Brewster

Headnote

Pleading—omission to answer admits allegations of complaint. Accounting.

A complaint stated that plaintiff owned a share in a vessel, and the defendants . the remaining shares; that plaintiff made repairs to the vessel, and furnished materials therefor to the value of $2,101.60; that defendants promised to pay their share of the amount; that they had paid $500, and that there remained due $1,551.64, and the complaint asked for an accounting. Defendants demurred; the demurrer was overruled and defendants did not answer; and an accounting was ordered before a referee. Held, that defendants, by omitting to answer, admitted the allegations of the complaint, one of which was that there was due plaintiff for repairs, etc., $1,551.64, and the admission of that item by the referee, as proved, was proper.

Appeal by defeudants from a judgment ordered at special term upon the report of a referee, and from an order overruling excep

tions to such report; also, from an order denying motion to strike out portions of the judgment roll.