Bensel v. Galt , 5 Thomp. & Cook 186 ( 1874 )

Talcott, J.

This is an appeal from an order of reference in this action, made at the Kings special term. The action is really one upon an account, claimed to be due from the defendants to the “ Pennsylvania Blue Stone Company,” under a contract whereby the stone company agreed to purchase from the defendants all the stone the company might require, at certain specified prices. The complaint alleges, that by reason of certain circumstances, unnecessary to be recapitulated, the' defendants were enabled to and did keep false accounts on the books of the company of the transactions under the contract, and seeks to impeach the accounts so kept, and to recover the actual balance which shall appear to be due from the defendants to the stone company, upon a true and correct statement of the accounts. There seems no doubt but that the case is one which is referable and1 ought to be referred, especially upon the condition imposed by the order of reference, and .assented to by the stipulation of the plaintiff, that the plaintiff will claim on the trial only the amount received by the defendants in excess of-what they were entitled to under the contract. Nothing is left to be investigated but a mere account of moneys received by the defendants, according to a true and just statement of the account.

The order appealed from is affirmed, with $10 costs of appeal.

Order affirmed.