Cornell v. United States Illuminating Co.

16 N.Y.S. 306, 41 N.Y. St. Rep. 172, 61 Hun 627, 1891 N.Y. Misc. LEXIS 417

Opinion

Lambert, J.

The fiist and second causes of action set forth in the complaint have their foundation in contract, and a specific sum of money in each caséis sought to be recovered; so it requires no argument to demonstrate that they do not involve an account, within the meaning of the provisions of the ( ode.

The third cause of action is for goods and merchandise sold, work and labor performed, for the defendant by the plaintiffs, of the alleged reasonable value and agreed price of $3,368.07, between December 17,1889, and June 17,1890, and paid thereon only at various times, $2,975.30. The allegation in which this cause of action is found is so general and wanting in detail that the court is left to infer or spell out the fact that there may possibly be involved and in dispute on the trial many items of account. It has been distinctly held by the court of last resort that the moving party, to bring the case within the purview of the provision of the Code, must allege at least such a state of facts as will justify the legal inference that the trial will involve the examination of a long account. Thayer v. McNaughton, 117 N. Y. 111, 22 N. E. Rep. 562. The affidavit of the plaintiffs’ attorney, read in support of the motion, does not supply the omission suggested. It contains the opinion of the attorney that the trial will require the examination of a long account, but fails to give the facts upon which the same is based. The most that the plaintiffs have proved is that possibly the trial may develop that it is necessary to examine many items of account, but this is not sufficient to justify or support an order of compulsory reference. By the seventh and eighth paragraphs of the answer, the defendant admits the sale and delivery of all the goods and merchandise and work performed, set out in the third cause of action, and joins issue on one payment of $29.48, and the value or agreed price of the merchandise and labor constituting the plaintiffs’ third cause of action. The mere statement of the issues made by the pleadings makes the inference quite probable that very few items will come in dispute on the trial. The counterclaim set up in the answer is for damages for alleged breach of contract, and in no sense involves an account such as is required to make the case referable, under section 1013 of the Code. The order appealed from must be reversed, and the motion denied, with $10 costs and disbursements.