¶1I think that the order of reference in this case should be affirmed. In Welsh agt. Darragh (52 N. Y., 590), it was held that the character of an action must be determined by the complaint, and that if that is upon contract the action is referable; and although the answer sets up a counter-claim and claims damages by way of recoupment, it does not change the character of the action, or render it non-referable.
¶2It is quite apparent that the trial of this action may, and that it probably will, involve the examination of a long account (52 N. Y., 590, supra).
¶3It is true that the defendants state, in the affidavit read in opposition to the motion, that the only items which will be *358disputed by the defendants are the items on the debit side of the account, under the date of March 4, 1873, relating to the gold coupons part due, and the premium thereon, and also for the amount overcharged for advertising bill, estimated at $1,508.
¶4This last item of $1,500 is the aggregate of bills of amounts alleged to have been disbursed by the defendants for advertising, under the agreement between them and the plaintiff’s assignor (Case, p. 17, fol. 51). The examination of these bills must require the scrutiny of a large number of small charges, and the verification of the same. Tinder these circumstances, I am not disposed to interfere with the order of •* the special term.
¶5It must be affirmed, with costs.
¶6Davis, P. J., and Daniels, J., concurred.