¶1The real issue in this case is whether, the assignees of 'Clark & Kline agreed, on the sale to plaintiff’s assignor of the real estate desci’ibed in the complaint, to pay out of the purchase money the Morris' mortgage, which was a lien thereon, and which plaintiff’s assignor was afterwards compelled to pay. It is quite clear that, the action does not involve the examination of a long account, within the ■meaning of section 1013 of the Code of Civil Procedure. If the plaintiff should succeed on the only real issue in the case, i. e., as to the agreement of the assignees of Clark & Kline to pay said mortgage, on which issue defendants are entitled to a trial by jury, a reference might •be afterwards ordered, if desired, to take proof as to the portion of plaintiff’s recovery that each defendant should pay. Drexel v. Pease, (N. Y. App.) 29 N. E. Rep. 241; Thayer v. McNaughton, 117 N. Y. 111, 22 N. E. Rep. 562; Camp v. Ingersoll, 86 N. Y. 433. The order should be reversed, with costs and printing disbursements, and the motion for a reference denied, with costs. All concur.
21 N.Y.S. 46
Morrison v. Crane
Decided November 22, 1892
New York Supreme Court · decided 1892-11-22
- Appeal from special term, Montgomery county. : Action by Elsie S. Morrison, executrix of Alexander C. Morrison, deceased, against Nathan P. Hinman and Thomas H. B. Crane, assignees for the benefit of creditors, and others, to recover the amount of a mortgage which was a lien on property such assignees sold to plaintiff’s assignor, and which he was compelled to pay. From an order of the special term appointing a referee, defendants appeal.' Reversed.
Relies on Camp v. . Ingersoll · Thayer v. . McNaughton
Decided 1892-11-22