Hilton v. Hughes

5 A.D. 226, 39 N.Y.S. 204

Opinion

Williams, J.:

We are of the opinion that the trial of this action did not involve the examination of a long account within the provision of the Code of Civil Procedure, so as to authorize the court to order a reference against the objection of the defendant.

The examination of a large account was not necessarily involved. The examination of any account was dependent upon the determination of the question whether the relations of the parties were' those of principal and agent, or not; whether the wrongful acts alleged were committed by the defendant or not. The court should itself have determined this question, and if its determination was such as to require such an accounting, the court might then order a reference to take such account. This is the practice generally adopted, and should have been adhered to in this case. (Camp v. Ingersoll, 86 N. Y. 433 ; Empire State Tel. & Tel. Co. v. Bickford, 142 id. 224; Morrison v. Van Benthuysen, 103 id. 675; Doyle v. M. E. R. Co., 136 id. 505.)

The order appealed from should be reversed, with costs of appeal, and the motion denied, with ten dollars costs.

Barrett, Rumsey, Patterson and Ingraham, JJ., concurred.

Order reversed, with costs of appeal, and motion denied with ten dollars costs.