Cochrane Carpet Co. v. Howells

33 N.Y.S. 309, 86 Hun 243, 93 N.Y. Sup. Ct. 243, 67 N.Y. St. Rep. 51

Opinion

PER CURIAM.

It is alleged in the complaint that between September 16, 1892, and April 8, 1893, plaintiff sold and delivered to the defendants goods, wares, and merchandise at the agreed price of $3,381.42. Upon the motion to refer, it appeared by the affidavits served in behalf of the plaintiff that the merchandise was sold on 10 different dates, and consisted of 133 pieces of goods. The defendants by their answer deny the allegation contained in the complaint, that the goods and merchandise at the agreed price mentioned were sold and delivered. This presents a material issue. The defendants have not tendered a stipulation admitting that goods of the quantity and at the agreed price alleged in the complaint were sold and delivered. Had this been done, or had they by a stipulation reduced the question to an issue over a single delivery, they would have avoided the necessity for a reference. Under the decisions, an action involving an account, with as many items as are directly put in issue by the answer, is referrable. The order should be affirmed, with $10 costs and disbursements.