Lawless v. O'Mahoney
This text of 9 Abb. Pr. 44 (Lawless v. O'Mahoney) 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.
Opinion
Upon [47]*47this appeal we cannot consider the question whether the issues involving the examination of an account were material or not. When the motion for a reference was made, the plaintiff had already set up his claim for an accounting. This claim was in the pleadings, and formed a part of the issues.
The defendant should have disposed of this issue, if it be immaterial, if he desired to send the case to a jury. Not having done so, and the issue being in the pleadings, it was within the power of the court to order a reference.
The order must be affirmed.
Present—Ingraham, P. J., and George G. Barnard, J.. In this case, Cardozo, J., having made the order appealed from, did not sit.
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9 Abb. Pr. 44, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lawless-v-omahoney-nysupct-1870.