Kennedy v. Shilton

— In March, 1850, as appears by the complaint, the plaintiff and defendant became general partners in contracting as masons and builders, and which partnership the plaintiff now asks to have dissolved for reasons stated, and that an accounting shall be had and taken of the joint affairs and business, under the direction of the court. The defendant having answered, tbe court, at special term, ordered that the issues in the *549action be referred to a referee, to hear and determine the same. From this order the defendant appeals, and insists, that because in his answer he alleges, “that at or about the first day of January, 1852, the copartnership accounts of Kennedy & Shilton, as between the two partners, were adjusted and settled, and since that they have not taken any new contracts,” the issue thus presented must be first tried and determined before an accounting can be ordered, or a reference had for the purpose of taking the account between the partners.

This, however, is a mistaken view of the effect of such an averment, because, conceding the fact to be as alleged, still the plaintiff would be entitled to have an accounting ordered from the time the accounts were so settled and adjusted.

The case is clearly one which the court, at special tern^*vas authorized to refer; and it rested in the discretion of the court to grant or withhold the reference. Code, § 271. Such an order does not involve the merits of the action, nor affect a substantial right, and there is no authority for its review upon appeal, when it is made in a case like the present. Code, § 349 ; Dean v. Empire State Mutual Ins. Co., 9 How. Prac. R. 69 ; Bryan v. Brennan, 7 ibid. 359 ; Tallman v. Hinman, 10 ibid. 89.

Appeal dismissed.