18 N.Y.S. 551 | N.Y. Sup. Ct. | 1892
It is claimed upon the part of the appellant that the issues in this action are not referable, in that serious questions of law are involved, and that it is only after the disposition of these questions of law and the defenses that any possibility of an accounting can arise. It is admitted by these objections, therefore, that, at some stage of this action, an accounting between the parties thereto will be necessary. The objection that serious questions of law are involved does not seem to be well taken, because, whatever questions of law there may have been in the case as it originally stood, they have been disposed of by the general term of this court. In respect to the defenses which are raised, they seem to be questions of fact, and it is as competent for the referee to determine the question as to whether there had been an account stated as it would be for the court. It certainly cannot be necessary for the court to try the affirmative defenses before it makes an order of reference in a case in which a reference would otherwise be proper. The order should be affirmed, with $10 costs and disbursements.
All concur.
