264 A.D. 869 | N.Y. App. Div. | 1942
In an action for an accounting, plaintiffs appeal from a judgment dismissing their complaint at the close of their case, and bring up for review so much of an earlier order, not appealed from separately, as denied their motion to strike from the answer certain denials, a defense and a counterclaim. Judgment reversed on the law and the facts and new trial granted, with costs to appellants to abide the event. Plaintiffs established a case for an accounting on the trial (Toplitz v. Bauer, 161 N. Y. 325, 332; Gillet v. Bank of America, 160 id. 549, 560; Marvin v. Brooks, 94 id. 71, 75, 76; Jordan v. Underhill, 91 App. Div. 124, 129), subject only to so much of the second defense as pleaded an account stated, which, if established, would be a defense to the action. That issue is triable preliminarily where an interlocutory judgment for an accounting is sought. (Weed v. Smull, 7 Paige, 573, 575; Stenton v. Jerome, 54 N. Y. 480, 484; Robinson v. Miller, 210 App. Div. 450, 454.) Evidence to support all the other allegations in the second defense, including those relating to the distribution made by defendant, other indebtedness of plaintiffs to defendant, and what defendant terms an account already rendered by it, would be relevant only on the taking of an account if that should be directed by interlocutory judgment. (Jordan v. Underhill, supra.) The order sought to be reviewed is not reviewable under section 580 of the Civil Practice Act. It is not an order which, if reversed, would take away the foundation of the judgment or make the trial and the judgment entered thereon invalid and without support. (Raff v. Koster, Bial & Co., 38 App. Div. 336, 338; Matter of Marchant v. Mead-Morrison M. Co., 252 N. Y. 284, 304; Peters v. Berkeley, 219 App. Div. 261, 265, 266.) The appeal from the order is, therefore, dismissed, without costs. Lazansky, P. J., Hagarty, Carswell, Adel and Taylor, JJ., concur.