Lord v. Connor

48 How. Pr. 95

• Court: The Superior Court of New York City
• Decided: August 15, 1874
• Status: Published

Opinion

Monell, Ch. J.

From an examination of the complaint in these actions, it seems that the action is to recover damages for the breach of an agreement, by the defendant, to purchase certain shares of Erie railway and other stocks, to replace other similar stocks which bud been borrowed in the course of the dealings between the parties. As I understand the introductory allegations in the complaints, they are of facts intended to show that an agreement existed, by or under which the defendant was bound to purchase the stocks in question.

I do not understand that any of the purchases .or sales mentioned in such introductory parts form any part of the claims for damages, but are intended to show the course of dealing between the parties from or by which it is claimed the agreement is made out.

In this view the actions are not referable (Evans agt. Kalbfleisch, 36 Superior Ct. R., 450).

In all cases arising on contract it must appear that the trial will require the examination of a long account. The mere affidavit of the moving party that it will is not conclusive. (Kane agt. Delano, 11 Abb. [N. S.], 29).

I may he wrong in my construction of the complaints, and the actions may be to recover on the several purchases and sales stated therein. But that is by no means clear,, and as the defendant, under section 158 of the Code, can compel a bill of particulars of the plaintiff’s claims, in the several actions, I think he should so do, that it may b'e made clear what the cause of action is.

But, upon the papers before me, I must hold the actions not to be referable.

The orders of reference must be vacated, but without prejudice to a renewal of the motions upon additional papers.