Edward O. Kindberg, Respondent, v. Robert R. Chapman, Appellant

Edward O. Kindberg, Respondent, v. Robert R. Chapman, Appellant. (No. 2.) First Department; October 19, 1906. Reference — when granted, on counterclaim involving long account. Although when the plaintiff sues on contract for a definite sum and the cause of action is- denied, the case will not be referred by reason of anything, set up in the answer, yet when the defendant, admits the allegations of the .complaint,, "but counterclaims for moneys'loaned, consisting of 340 items, a reference upon the. ground that the examination of a long account is involved is proper. Appeal by the defendant, Robert R. Chapman, from an order of the Supreme Court, made at the New York Special Term and entered in the .office of the cleric of the county of New York on the 13th day of September, 1906, appointing a referee herein. Theodore T. Baylor, for the appellant. .August Beymert, for the respondent. [MAJORITY — Scott, J.:] Scott, J.: Plaintiff sues to recover the sum of $5,000 upon a promissory note. His claim is not contested, but the defendant by way of counterclaim seeks to establish an indebtedness by plaintiff to him in the sum of $6,000. This claim is for moneys said to have been , loaned to plaintiff and paid out for his account, mainly in small sums, between October 28, 1897, and November 12, 1902. By his bill of particulars defendant shows that his claim embraces some 340 items. The reply to the counterclaim is in effect a general denial. From an order of reference granted on plaintiff’s motion, defendant appeals. The cause of action set up by the counterclaim would undoubtedly justify a compulsory order of reference if embodied in a complaint, and while it is the general rule that if a plaintiff sues upon a contract for a definite sum of money, or for damages, ex cont/ractu, and his cause of action be gainsaid by the defendant, the cause is not referable notwithstanding anything which the defendant may set up in his answer, yet if, as in the present case, the plaintiff’s claim is not gainsaid,.and the defendant sets up a .counterclaim which requires the examination of a long account then the cause is referable. (Stock v. Colorado Fuel & Iron Co., 142 N. Y. 236.) The order should be affirmed, with ten dollars costs and disbursements. O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred. Order affirmed, with ten dollars costs and disbursements. Order filed.