Freeman v. Atlantic Mutual Insurance

13 Abb. Pr. 124

Opinion

By the Court

Footnotes

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—The claim of the plaintiff in this case, upon j which the motion for a reference was based, was to recover for a lot of goods alleged by him to have been put on board of the vessel which was lost. Although the quantity and value of the goods were necessarily involved, yet it can hardly be said that such a claim involved the examination of an account. An account of one party against another is a series of charges for goods sold, &c., and is not merely introduced in evidence for the purpose of estimating damages, but is the foundation of the action.

As the whole defence in this case rests upon the alleged fraud of.the plaintiff, in not putting the goods on board, and also that the vessel was intentionally wrecked; and as both issues involve directly a charge of fraud, we do not think the case should have been referred; such questions are properly to be tried by a jury. The case in 25 Wend., 687, is directly in point.

Order reversed, with costs.

Present, Clerke, P. J., Ingraham and Leonard, JJ.