Hamilton v. Piza

8 A.D. 617, 40 N.Y.S. 930, 75 N.Y. St. Rep. 326, 1896 N.Y. App. Div. LEXIS 2432

Opinion

Per Curiam:

This cause was properly upon the equity calendar. The issues joined were such as could not be tried by a jury. It specifically appeared that the action was not to recover damages to be assessed or ascertained only by a jury in the ordinary way, but judgment was demanded in the complaint against the defendant for an amount which must be determined to be due to the plaintiff, after an accounting, which accounting was also prayed for of all the amounts of loans furnished by the plaintiff’s assignors under and pursuant to an agreement for the management of the business of a corporation, and of the amount of the indebtedness of the corporation existing in favor of the plaintiff’s assignors, and judgment is asked for the application of moneys to be found due on an accounting to the payment of the indebtedness provided for under the terms of the contract annexed to the complaint. The accounting lies at the very foundation of the action, and it was error to refuse to try the cause at Special Term. The order must be reversed, with costs, and the cause restored to the Special Term calendar for trial. Present—Barrett, Rumsey, Patterson and Ingraham, JJ.