London v. Meryash

132 A.D. 323, 117 N.Y.S. 1, 1909 N.Y. App. Div. LEXIS 1488

Opinions

McLaughlin, J.:

Plaintiff and defendant were copartners and on the 20th of March, 190.7, entered into an agreement dissolving the partnership. This action is brought for an accounting and to compel the fore closure of a mortgage given by the defendant and the cancellation of a mortgage given by the plaintiff to a trustee' pursuant to the agreement. After issue had been joined the plaintiff, against the objection of the defendant, obtained an order referring the issues. Defendant appeals and the plaintiff seeks to sustain the order upon the ground' that the right to an accounting is admitted by the answer and that no issues of fact are raised independent of the status of the account between the parties.

Assuming, without deciding, that this is so, the order cannot be sustained. The proper practice in such case was pointed! out by this court in Gibson v. Widman (106 App. Div. 388) where it was said: “ This action being for an accounting, a reference to hear and determine the .issues cannot be ordered prior' to the entry of an interlocutory judgment providing for an accounting. If the parties are entitled to such an interlocutory judgment upon the pleadings, that relief can bo granted by- motion ánd a proper interlocutory judgment entered. An accounting may then be taken before a referee.”

The order appealed from must, therefore, be reversed, with. ten dollars costs and disbursements, and the motion denied,, with ten dollars costs.. . . .

Ingraham and Clarke, JJ., concurred; Scott, J., dissented.