John C. Diehl, Respondent, v. Peter R. Dreyer, Appellant

John C. Diehl, Respondent, v. Peter R. Dreyer, Appellant. Reference to take an account — not ordered until issues, upon the decision of which the right thereto depends, have been determined — right of one partner to examine the account before a reference is ordered. In an action brought by the liquidating partner of a partnership, which had been dissolved by agreement, against the other partner for an accounting of the partnership assets and a division of the surplus remaining after the payment of debts, the defendant interposed an answer, admitting the copartnership and its dissolution and setting up three counterclaims. The relief demanded was that the complaint be dismissed and that the defendant recover judgment upon the counterclaims. {Held-, that the court should not, over the objection of the 'defendant, appoint a referee to take-and state the accounts between the parties .until the right, ¡to, and the necessity of, an accounting had been established by an interlocutory judgment; That, in view of the fact that the plaintiff was the liquidating partner, the defendant .should be afforded an opportunity-to -accept the. .statement of ike accounts as presented by the plaintiff and-thus avoid-the expense and delay: of an accounting before a referee. , 'Appeal by'the defendant, Peter'R. Dreyer, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York oh the 27jth day'of January, 1903, resettling an order entered in said clerk’s office on the 16th day of January, 1903, appointing a referee to take and state the account between the plaintiff and the defendant. | ■ Herbert A. Heyn, for the appellant. H. Ormonde Power, for the respondent. [MAJORITY — Ingraham, J.:] Ingraham, J.: The action is brought for an accounting between partners and ¡to have the property of the firm- sold, the copartnership debts and liabilities paid,, and the surplus, if any, divided between the .plaintiff and the defendant, according to their respective interests. The answer admits the copartnership and its dissolution, and as a separate defense sets rip three counterclaims, and demands that the complaint be dismissed and the defendant recover judgment upon tire counterclaims against the plaintiff. The case .-being at issue, -the plaintiff, on an affidavit of his attorney that the trial of the action would involve the examination- of a. long account, applied to the Special Term for the appointment of a referee to take and state the accounts between the patties arid to report what, oir the balance of such accounts, would appéar to be due from either party to the other,, which application was granted. The order of reference makes no, provision for the disposition of the. counterclaims interposed by the defendant. The defendant opposed the motion upon the claim, that no accounting is necessary. In" an action in equity for an accounting, where the right to the accounting is denied,..it has been the. practice to bring the. case ón for trial- at Special Term to determine there the-right to an accounting and dispose of the other issues in the case, and then if an accounting is necessary it can be directed by an interlocutory judgment. In such an action the accounting is incidental, to be ordered when the rights of the parties are established by the interlocutory judgment. The plaintiff, under the agreement of dissolution, was the liquidating partner, and the defendant should have the opportunity to accept the statement of the accounts as presented by the plaintiff, so as to avoid the expense' and delay of an accounting before a referee. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs; these costs to abide the award -of costs by the final judgment. Patterson, O’Brien, Hatch and Laughlin, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs; these costs to abide the award of costs by the final judgment.