Opinion
June 11, 1909.
John W. Weed, for the appellant.
Lewis H. Freedman, for the respondents.
The plaintiffs and another who was made defendant were the reorganization committee of the Chattanooga Southern Railway Company, appointed by agreement. This action is brought for an accounting and to have the rights of the defendants fixed and the trust created by the reorganization agreement terminated. The appellant Van Siclen answered admitting certain allegations of the complaint and denying information as to others, and setting up that certain moneys borrowed by the reorganization committee were not proper disbursements by them under the agreement and should be paid personally, and that certain acts were unauthorized.
The plaintiffs moved for a compulsory reference on the ground that the action involved the examination of a long account and against the objection of the defendant Van Siclen the court appointed a referee to hear and determine.
The order must be reversed. Section 1013 of the Code of Civil Procedure does not apply where the object of the action is to obtain an accounting. The rule is that in an action for an accounting a reference to hear and determine the issues cannot be ordered until an interlocutory judgment providing for such accounting has been entered after trial of the issues involved or upon motion on the pleadings if no issue be raised. ( London v. Meryash, 132 App. Div. 323; Gibson v. Widman, 106 id. 388.)
The order is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
INGRAHAM, McLAUGHLIN, CLARKE and SCOTT, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.