Cayard v. Texas Crude Oil & Mining Co.

103 N.Y.S. 437 | N.Y. App. Div. | 1907

McLaughlin, J.:

This action was brought for the specific performance of an alleged agreement and for an accounting.

The answers of the different defendants put in issue the existence of the agreement and the right of the plaintiffs to the relief claimed. After issue had been joined, an order was made referring the matter to a referee to hear and determine, and the plaintiffs appeal therefrom.

The appeal is well taken. The action is in equity and the right to an accounting depends upon the existence of the alleged agreement, and this having been denied in the answers of the different defendants, it was the issue to be tried. This issue does not require the examination of a long account, or bring the case within the provisions of the Code (§ 1013) which authorize a compulsory reference. The plaintiffs, are entitled to. have the question of their right to an accounting" determined by . a trial at Special Term, before a reference can be ordered to take an account. (Jones v. Lester, 77 App. Div. 174; Leary v. Albany Brewing Co., 66 id. 407; Knox v. Gleason, 63 id. 99; Hilton v. Hughes, 5 id. 226; Averill v. Emerson, 74 Hun, 157.) If it be there determined that the right to an accounting exists, then a reference may be ordered.

The order appealed from, therefore, must be reversed, with ten dollars costs, and disbursements, and the motion denied, with ten dollars costs.

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Order • reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.