Hossack v. Heyerdahl

6 Jones & S. 391

• Court: The Superior Court of New York City
• Decided: December 9, 1874
• Status: Published

Opinion

By the Court.—Sedgwick, J.

This is an appeal from an order directing a reference to hear and determine the issues. The principal point of the appellants is that the examination of a long account, in the sense o£ the Code, will not be required on the trial, in the necessity of the plaintiff to show many instances of service, on several days, and for different numbers of hours. However correct the proposition of the learned counsel for the appellant may be, that an account as known by the law is not an ex parte enumeration of items, but a statement of dealings having a recognized mutual or reciprocal character, yet. the practice is not to apply their strict definition to the words of the Code, but to consider that the Code intended that whatever presents the same kind of difficulties as a strict account for the action of a jury, should be sent to a referee.

The finding of the judge below that the account to be taken was long is conclusive on the question of fact involved.

The order appealed from should be affirmed, with costs.

Monell, Ch. J., and Speir, J., concurred.