Marcile v. Salztman , 6 N.Y. St. Rep. 48 ( 1886 )

Dykman, J.

The complaint sets up an indebtedness of the defendant’s testatrix for goods sold and delivered, and also for a nursery, which was sold by her and which belonged to the plaintiff.

If a recovery is realized under this complaint it will be on a contract implied by law in favor of the plaintiff. The action is founded on contract and not on a tort, and the account involved is of sufficient length to justify the order' of reference.

The order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.