Keller v. Payne

New York Supreme Court

Keller v. Payne

4 N.Y.S. 227, 58 N.Y. Sup. Ct. 316, 21 N.Y. St. Rep. 387, 51 Hun 316, 1889 N.Y. Misc. LEXIS 256

CourtNew York Supreme Court

DecidedJanuary 28, 1889

StatusPublished

Cited by3 cases

This text of 4 N.Y.S. 227 (Keller v. Payne) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Keller v. Payne, 4 N.Y.S. 227, 58 N.Y. Sup. Ct. 316, 21 N.Y. St. Rep. 387, 51 Hun 316, 1889 N.Y. Misc. LEXIS 256 (N.Y. Super. Ct. 1889).

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Opinion

Bartlett, J.

This is an action to recover the purchase price of goods sold and delivered. The plaintiffs accepted from the defendants in payment therefor two promissory notes, which had not yet fallen due when the suit was begun, but which they offered to restore to the defendants, alleging that they had been induced to take them by means of false representations as to the defendants’ solvency. Upon the trial at circuit, before a jury, the plaintiffs endeavored to prove that the defendants were insolvent, by entries from the books of the defendants’ firm; and the learned judge who was presiding finally ordered a reference, of his own motion, on the ground that the case involved the examination of a long account. The defendants admitted the purchase of the goods which the plaintiffs claimed to have sold them, but de[228]*228nied the alleged fraudulent representations, and pleaded the giving and acceptance of the notes as an affirmative defense. The case, therefore, did not call for the examination of a long account, or any account whatever, between the parties. The entries in the books of the defendants were material only as bearing upon the question of their solvency at the time of the alleged misrepresentations. It is well settled that, in order to authorize a compulsory reference, the account must be between the parties to the action, and must be directly involved in the suit. Camp v. Ingersoll, 86 N. Y. 433. Here it is apparent that the accounts by which the plaintiffs seek to show that the defendants were insolvent are for the most part, if not wholly, between the defendants and third parties, and that such accounts have only a collateral bearing upon the issues in the case. Under these circumstances, the action of the court below cannot be sustained, unless we are prepared to hold that a compulsory reference is authorized in any action based upon the allegation of false representations by a defendant as to his solvency, wherein the plaintiff proposes to read accounts from the defendant’s books, between the defendant and other creditors, for the purpose of proving the alleged fraud. The order should be reversed, with costs, and the case should be restored to the circuit calendar for trial. All concur.

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Bartlett, J.

This is an action to recover the purchase price of goods sold and delivered. The plaintiffs accepted from the defendants in payment therefor two promissory notes, which had not yet fallen due when the suit was begun, but which they offered to restore to the defendants, alleging that they had been induced to take them by means of false representations as to the defendants’ solvency. Upon the trial at circuit, before a jury, the plaintiffs endeavored to prove that the defendants were insolvent, by entries from the books of the defendants’ firm; and the learned judge who was presiding finally ordered a reference, of his own motion, on the ground that the case involved the examination of a long account. The defendants admitted the purchase of the goods which the plaintiffs claimed to have sold them, but de[228]*228nied the alleged fraudulent representations, and pleaded the giving and acceptance of the notes as an affirmative defense. The case, therefore, did not call for the examination of a long account, or any account whatever, between the parties. The entries in the books of the defendants were material only as bearing upon the question of their solvency at the time of the alleged misrepresentations. It is well settled that, in order to authorize a compulsory reference, the account must be between the parties to the action, and must be directly involved in the suit. Camp v. Ingersoll, 86 N. Y. 433. Here it is apparent that the accounts by which the plaintiffs seek to show that the defendants were insolvent are for the most part, if not wholly, between the defendants and third parties, and that such accounts have only a collateral bearing upon the issues in the case. Under these circumstances, the action of the court below cannot be sustained, unless we are prepared to hold that a compulsory reference is authorized in any action based upon the allegation of false representations by a defendant as to his solvency, wherein the plaintiff proposes to read accounts from the defendant’s books, between the defendant and other creditors, for the purpose of proving the alleged fraud. The order should be reversed, with costs, and the case should be restored to the circuit calendar for trial. All concur.

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Bluebook (online)

4 N.Y.S. 227, 58 N.Y. Sup. Ct. 316, 21 N.Y. St. Rep. 387, 51 Hun 316, 1889 N.Y. Misc. LEXIS 256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keller-v-payne-nysupct-1889.

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