¶1Plaintiff sues to recover the sum of $5,000 upon a promissory note. His claim is not contested, but the defendant by way of counterclaim seeks to establish an indebtedness by plaintiff to him in the sum of $6,000. This claim is for moneys said to have been , loaned to plaintiff and paid out for his account, mainly in small sums, between October 28, 1897, and November 12, 1902. By his bill of particulars defendant shows that his claim embraces some 340 items. The reply to the counterclaim is in effect a general denial. From an order of reference granted on plaintiff’s motion, defendant appeals. The cause of action set up by the counterclaim would undoubtedly justify a compulsory order of reference if embodied in a complaint, and while it is the general rule that if a plaintiff sues upon a contract for a definite sum of money, or for damages, ex cont/ractu, and his cause of action be gainsaid by the defendant, the cause is not referable notwithstanding anything which the defendant may set up in his answer, yet if, as in the present case, the plaintiff’s claim is not gainsaid,.and the defendant sets up a .counterclaim which requires the examination of a long account then the cause is referable. (Stock v. Colorado Fuel & Iron Co., 142 N. Y. 236.)
¶2The order should be affirmed, with ten dollars costs and disbursements.
¶3O’Brien, P. J., Ingraham, Clarke and Houghton, JJ., concurred.
¶4Order affirmed, with ten dollars costs and disbursements. Order filed.