Boss v. Combes
The Superior Court of New York City
Appeal by defendant from an order directing a reference to hear and determine all the issues. The action was upon a contract for the sale and delivery of a quantity of peaches, to be shipped and delivered by the plaintiff to the defendant, at a stipulated price.
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Appeal by defendant from an order directing a reference to hear and determine all the issues. The action was upon a contract for the sale and delivery of a quantity of peaches, to be shipped and delivered by the plaintiff to the defendant, at a stipulated price. The complaint alleged a delivery of part and payment therefor, and then, “ that subsequently the plaintiffs delivered certain other of the peach crop sold to the defendant, of which a particular account is annexed to their complaint; that the defendant is indebted to the plaintiffs for the quantities so delivered, together with…
1Opinion of the Court
By the Coubt.—Howell, Ch. J.
It is objected that this order is not appealable. That the action being upon contraed, and the issues requiring the examination of an account, the order was discretionary, and that therefore, as there was no question of the power, of the court to order the reference, under the uniform decisions of the courts, an appeal from the order does not lie. In the decisions referred to, the appealability of the order was ascertained by determining whether it was within the power of the court to make it. If it was wholly discretionary, it was final, but if the action, or the…
2Cases cited2 opinions
- Whitaker v. DesfosseThe Superior Court of New York City · 1861
- Batchelor v. Albany City InsuranceThe Superior Court of New York City · 1869