
    William Spence, App’lt, v. Adolph Simis, Jr, Resp’t.
    
      (City Court of Brooklyn, General Term,,
    
    
      Filed December 27, 1892.)
    
    Reference—Compulsory.
    - Where action is brought for goods sold at various times, consisting of many items, and the answer, while admitting that such goods have been delivered, alleges an absence of knowledge or information sufficient to form a belief that they were of the quantity alleged, the plaintiff, unless he stipulates to rely on the promise to pay, must prove each of said items, and a reference is, therefore, proper.
    Appeal from order granting a compulsory reference.
    The complaint alleged the sale and delivery to defendant of coal and wood, which were reasonably worth and for which defendant promised to pay the sum of $248.25 ; also, that plaintiff paid for recording a mortgage, for which defendant agreed to reimburse him, but failed to do so; also, that defendant was indebted to him for interest moneys on said mortgage.
    The answer admitted that plaintiff had sold coal and wood to defendant, but alleged that defendant had no knowledge or information sufficient to form a belief that the value thereof was $248:25, or that he promised to pay the same; also, denied having any knowledge or information as to the other allegations, and set up counterclaims for professional services.
    
      Andrew L. Gardiner, for app’lt; Adolph Simis, Jr., for resp’t.
   Per Curiam.

The plaintiff brought this action for goods sold and delivered, and it is conceded that, on the answer, he may be bound to prove each item of his account [which consists of twenty-three items]. If the appellant had stipulated, on the motion for reference, to withdraw his claim on a quantum meruit and rely solely on the allegation of a promise to pay, no proof of the items would have been necessary. The plaintiff may not be able to prove the promise, and then can prove the items of the account The order of reference was, therefore, properly made.

Order affirmed, with ten dollars costs and disbursements.

Clement, Ch. J., and Van Wyck, J., concur.  