New York Supreme Court, 1870

Lawless v. O'Mahoney

New York Supreme Court · Decided September 15, 1870 · Ingraham, Orally

9 Abb. Pr. 44

Counsel

H. E. Tallmadge, for the appellant,, Rice, Wilson & Stitt, for the respondent.

Opinion of the Court

By the Court.*—Ingraham, P. J. (orally.)

Upon *47this appeal we cannot consider the question whether the issues involving the examination of an account were material or not. When the motion for a reference was made, the plaintiff had already set up his claim for an accounting. This claim was in the pleadings, and formed a part of the issues.

The defendant should have disposed of this issue, if it be immaterial, if he desired to send the case to a jury. Not having done so, and the issue being in the pleadings, it was within the power of the court to order a reference.

The order must be affirmed.

Present—Ingraham, P. J., and George G. Barnard, J.. In this case, Cardozo, J., having made the order appealed from, did not sit.

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