William H. H. Childs, Respondent, v. William Mayor, as Executor, etc., Appellant.
N. Y. Supreme Count, Second Department, General Term,
May 13, 1889.
Reference. Not compulsory.—A reference will not be ordered, where the result of the trial will be controlled by the question of warranty involved in the case, and, the trial of the action will not involve the examination of a long account.
Appeal from an order of reference.
The action is brought for oil sold to defendant.
The defense sets up a warranty of the oil, a breach of the warranty and damages by reason thereof.
The bills of particulars of the claim and counterclaim contained, the former, about fifty items of sales at different times, and the latter, about the same number of items of' damages.
After the cause' was noticed and placed on the jury-calendar, plaintiff moved for an order of reference on the ground that the trial would involve the examination of a long account. The defendant, in answer to this motion, admitted that all the oil claimed in plaintiff’s bill of particulars, except one lot, had been delivered.
*336William B. Lynes, for appellant.
John L. Shirley, for respondent.
Dykman, J.
—This is an appeal from a compulsory order of reference made upon the theory that the trial of the action will involve the éxamination.of a long account.
An examination of the pleadings is sufficient to show that the result of the trial will be controlled by the question of warranty involved in the case, but in any view there is no such account as the law requires to justify a compulsory reference.
The order appealed from should be reversed, with ten dollars costs and disbursements.
Barnard, P. J., concurs; Dykman, J., not sitting.