Bencoe v. McDonnell 217 A.D. 760

Order denying defendants’ motion for a construction of the interlocutory decree entered herein, so as to provide that the referee shall determine the issue of account stated, reversed upon the law and the facts, with ten dollars costs and disbursements, and defendants’ said motion granted, with ten dollars costs. This court is of opinion that under the interlocutory decree all the issues raised by "the pleadings, including the defense of account stated, are before the referee to hear and report upon, with his opinion. The court is also of opinion that defendants did not waive the defense of account stated by the stipulation made herein. Kelly, P. J., Rich, Jaycox and Manning, JJ., concur;

*761Kapper, J.,

dissents, and votes to affirm, on the ground that the entry of the interlocutory judgment and the accounting directed thereunder in pursuance of the stipulation, are inconsistent with the defense of an account stated, and that the reservation, in tifie stipulation, of all issues of law and fact relates only to such questions as might arise upon the accounting, and that, as so construed, the order appealed ..from was right.