Vega Co-operative Creamery Ass'n v. Craft
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Vega Co-operative Creamery Association, from an order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Delaware on the 8th day of May, 1917, appointing a referee to hear and determine the issues herein. The question presented on this appeal is whether it affirmatively appears that an examination of a long account will be necessary upon the trial.
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Appeal by the plaintiff, Vega Co-operative Creamery Association, from an order of the Supreme Court, made at the Delaware Special Term and entered in the office of the clerk of the county of Delaware on the 8th day of May, 1917, appointing a referee to hear and determine the issues herein. The question presented on this appeal is whether it affirmatively appears that an examination of a long account will be necessary upon the trial. The portions of the complaint essential to the decision of this appeal are those relating to repairs, taxes and insurance. It alleges that a lease from the…
1Opinion of the Court
Sewell, J.:
The action having been brought to recover a balance claimed to be due the plaintiff on the theory of an overpayment the burden is upon it to prove both sides of the account. (Irving v. Irving, 90 Hun, 422; Wisner v. Consolidated Fruit Jar Co., 25 App. Div. 362.) It must show the amounts necessarily and properly paid by the defendant and the sums deducted .by the defendant on account of such payment.
The trial of the issues will, therefore, necessarily involve the examination of all the items set forth in the bill of particulars. The order appealed from should be affirmed, with ten…
2Cases cited2 opinions
- Irving v. IrvingNew York Supreme Court · 1895
- Wisner v. Consolidated Fruit Jar Co.Appellate Division of the Supreme Court of the State of New York · 1898
3Cited by1 opinion
- Illinois Central R. v. Midwestern Grain Co.District Court, W.D. Missouri · 1969