Fisher v. Haines

McLaughlin, J.: Appeal from an order referring the issues on the ground that the determination of them involves an examination of a long account. The action is brought to recover the sum of $50,000 moneys alleged to have been paid by the plaintiff at the request of for the benefit of the defendant, pursuant to the terms of a written agreement which is attached to, and made a part of, the complaint. The complaint alleges, among other things, that “under the terms of said agreement said defendant agreed that he would, within thirty days from the date of said agreement, pay and discharge, or cause to be paid and discharged, all the debts, liens, claims, taxes, judgments, obligations and encumbrances which were outstanding and unpaid on the 3d day of May, 1900, against the Rockaway Valley Railway Company; and that lie would pay and discharge, or cause to be paid and discharged, within the same time all interest on the $125,000 of bonds of said railway company which had accrued prior to the first day of April, 1900, and remained unpaid on said date, * * * so that the capital stock, works, property, rights, franchises and immunities of said Rockaway Valley Railway Company should be free and clear of all debts, liens, claims, taxes, judgments, obligations and encumbrances, except said bonds for $125,000 and the interest thereon accruing since said first day of April, 1900. * * * That said defendant further agreed within thirty days from the date of said agreement to repay to this plaintiff all sums of money paid by this plaintiff, or on his behalf, arid to repay to the Rockaway Valley Railway Company all sums of money paid by it on account of the debts, liens, claims, taxes, judgments, obligations and encumbrances which were outstanding against said Rockaway Valley Railway Company on said 3d day of May, 1900, or on account of the interest on said $125,000 of bonds of said railway company which had accrued prior to said 1st day of April, 1900;” [68] The complaint then alleges that the plaintiff has duly performed all the terms and conditions of said agreement on his part, but that the defendant has failed to keep and perform the terms and conditions of the agreement on his part, and has failed and neglected to pay and discharge any of the debts, liens, claims, taxes, judgments, obligations and incumbrances which were outstanding against said railway company on the 3d day of May, 1900, or to pay any of the interest on the $125,000 of the bonds of said company which accrued prior to the 1st day of April, 1900; by reason whereof the plaintiff was compelled to and did pay on account of “ said debts, liens, claims, taxes, judgments, obligations and- encumbrances * the sum of $67,864.43,” Upon which the defendant is entitled to be credited according to the terms of said agreement the • sum of $16,132, the proceeds of certain capital stock sold by the defendant to the plaintiff, and, in addition ■ thereto, the sum of $1,732.43, the amount earned by said railway company between certain dates, and, after crediting such sums, that the defendant is indebted to' the plaintiff by reason of the payments mentioned in the sum of $50,000, for which judgment is demanded. The defendant, in the answer interposed by him, admits the execution of the agreement referred to, but “ denies any knowledge or information sufficient to form a belief as to the amount of moneys earned by the said Rockaway Valley Railway Company prior to May 3d, 1900, and, therefore, denies that the sum of one thousand seven hundred and thirty-two dollars and forty-three cents ($1,732.43) is all that should have been credited to him upon his obligations under said agreement.” He also denies any knowledge or information sufficient to form a belief that the debts, liens, claims, taxes, judgments, obligations and incumbrances of said railway, together with the interest that had accrued on said bonds prior to April 1, 1900, amounted in the aggregate to $67,864.43, or . that the plaintiff. paid that amount under the terms and conditions of said agreement, and he, “ therefore, denies that there is due to this plaintiff from the defendant the sum of fifty thousand ($50,000) dollars as alleged in said complaint.” Other defenses are interposed,- but it is unnecessary here to consider them. The most casual consideration of the foregoing allegations of the complaint and answer is sufficient -to show that the court at Special [69] Term was justified in exercising its discretion in referring the issues. Under the denials contained in the answer it is apparent that the examination of a long account is involved and is necessary. To establish the cause of action alleged in the complaint it will be necessary for the plaintiff to prove what debts, liens, claims, taxes, judgments, obligations and incumbrances against the railway company were paid by him, and the validity of such debts, claims, etc., and in addition to this the credits to which the defendant is entitled, the amount of which is in dispute, must be proved — that is, the amount received from the stock referred to and the amount which the railway company earned between the dates specified. It does not' need an extended discussion to demonstrate that the proof as to what the railroad earned will necessarily involve the examination of a long account. It, therefore, follows that the order of reference was properly made. (Cassidy v. McFarland, 139 N. Y. 201; Steck v. C. F. & I. Co., 142 id. 236.) The order is right and should be affirmed, with ten dollars costs and disbursements. Patterson and Ingraham, JJ., concurred; Hatch and Laugh-, lin, JJ., dissented.