General
Charles L. Fuller, Appellant, v. Frederick Starr, Respondent
209 A.D. 852·New York Supreme Court, Appellate Division·1924·NY
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Opinion
First Department,
June, 1924.
Charles L. Fuller, Appellant, v. Frederick Starr, Respondent.
References — compulsory reference denied where plaintiff can establish cause without proof of long account.
Appeal from an order of the Supreme Court, made at the New York Trial Term and entered in the New York county clerk’s office April 23, 1924, granting defendant’s motion for the appointment of a referee.
[MAJORITY — Per Curiam:]
Per Curiam:
As the plaintiff can establish his cause of action without his burden of proof involving proof of a long account, the cause of action upon the complaint and answer is not referable. (Snell v. Niagara Paper Mills, 193 N. Y. 433; Steck v. Colorado Fuel & Iron Co., 142 id. 236.) The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, and the case restored to the day calendar for immediate trial. Present — Clarke, P. J., Dowling, Merrell, Finch and McAvoy, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and the ease restored to the day calendar for immediate trial.