82 N.Y.S. 452 | N.Y. App. Div. | 1903
The action is upon an account stated, the complaint alleging that the plaintiffs were stockbrokers in the city of New York; that on ■or about the 14th day of May, 1901, an account was stated between the plaintiffs and the defendant, a copy whereof is annexed to the
The plaintiffs in reply substantially deny the allegations of the answer constituting the counterclaim. Upon the pleadings and upon an affidavit of one of the plaintiffs which stated that the trial of these issues would require the examination of a long account on the side of both parties, consisting of a large number of items of charges and credits of various dates, which was not denied, the plaintiffs made a motion that the issues be referred to a referee to hear and determine. The action being thus upon an account stated, the plaintiffs’ cause of action would be made out by proving the statement of the account. The defendant, however, attacks the account as having been false and fraudulent, alleging that the amount claimed is not, in fact, actually due and that the reports and statements upon which the accounts between the parties were accepted by the defendant contained false and fraudulent representations. This is a direct attack upon the correctness of the account rendered by the plaintiffs and upon which the action is brought; and it is quite evident that to determine the issues presented by the pleadings, in order to show that the statement of the account relied upon by. the plaintiffs was one based upon a false and fraudulent statement of accounts, the accounting asked for by the defendant will be necessary. Such an accounting for which the defendant asks, and which will be necessary to determine the issues raised by the pleadings, is thus the real issue that is presented, and it would seem to be quite evident that such an accounting will be impossible
In Steck v. C. F. & I. Co. (142 N. Y. 236) the prevailing opinion, after an exhaustive examination of the authorities, says: “ This discussion, therefore, comes to this: If the plaintiff brings his action upon a long account, then it is such as was referable prior to 1777, and as the examination of a long account is required on his side the defendant cannot defeat a reference by anything he may set up in his answer by virtue of the statutes allowing set-offs and counterclaims. If the plaintiff’s cause of action be upon contract for a definite sum of money, or for damages, ex contractu, and his cause of action be not gainsaid by the defendant, and the defendant sets up a counterclaim which requires the examination of a long account, then the case is such as would have been referable under the act of 1768.
This conclusion is sustained by Irving v. Irving (90 Hun, 422; affd., 149 N. Y. 573). That action was on a promissory note made by the defendant to the order of the plaintiff. The defendant by the answer. denied that the promissory note was made for value, and alleged that it was without consideration; and denied that any sum of money was due and owing from the defendant. The answer then alleged various stock transactions between the parties, out of which was rendered a false account against the defendant, for which he was induced to give the note in suit; and it was held that to determine the question as to whether this defense could be sus
We think, therefore, that the issues in this case were referable ; that the taking óf the account between the parties upon which the defense is based involves the examination of a long account that would be impracticable before a jury, and that the court properly ordered the issues referred.
It follows that the order appealed from should be affirmed, with ten dollars costs and disbursements.
O’Brien and Laughlin, JJ., concurred; Van Brunt, P. J., and McLaughlin, J., dissented.
Order affirmed, with ten dollars costs and disbursements.
See Colonial Laws of N. Y. [Comp. Stat. Rev. Com. vol. 4, p. 1040], chap. 1363.— [Rep.