Silliman v. Smith

76 N.Y.S. 65

Opinion

PER CURIAM.

This judgment is unpractical. The defendant cannot be directed by a judgment to account to a plaintiff. The accounting must be made before the court or a referee, who shall determine the amount due, and after having made such determination shall direct judgment therefor. The judgment must therefore be reversed.

The record does not show the order of reference. Whether it was a reference to hear and determine or a reference to state an account does not appear. The defendant, by failing to answer the plaintiff’s complaint, has admitted all material allegations therein. Upon those allegations, as thus admitted, the plaintiff is entitled to an accounting by the defendant. This accounting may be had before the special term or before a referee appointed for that purpose.

Judgment reversed, with costs to appellant, referee discharged, and case remitted to court below for further action.