
    Spence v. Simis.
    (City Court of Brooklyn—General Term,
    December, 1892.)
    In an action for goods sold and delivered, there were twenty-three items set forth in the complaint; the answer admitted delivery and absence of knowledge or information sufficient to form a belief as to the quantity delivered. Held, that a reference was proper unless plaintiff would stipulate to withdraw his claim on quantum meruit, and rely solely on the promise to pay.
    Appeal by plaintiff from an order granting a compulsory reference, on motion of defendant.
    Action to recover the price of coal and wood and labor. The answer admitted the delivery of coal and wood, and the performance of certain labor, knowledge or information sufficient to form a belief that the coal and wood so delivered was of the quantity alleged in the complaint, as set forth therein, and in the copy account annexed thereto, marked Exhibit A, and that the labor charged thereon was ever performed, and that the value of said coal and wood and labor were reasonably worth the sum of §248.25, and that he promised to pay the same.
    The first allegation of the complaint was as follows: “First. That at diverse times, between the fifteenth day of April, 1886, and the twenty-first day of September, 1888, both inclusive, the above-named plaintiff, at the city of Brooklyn, at the special instance and request of the above-named defendant, sold and delivered certain goods, wares and merchandise, to wit, coal and wood, to the defendant, and did and performed certain work, labor and services, to, for and on account of defendant, as set forth in the account, a copy of which is hereunto annexed and marked Exhibit ‘ A,’ and made part of this complaint, which were reasonably worth, and for which defendant promised and agreed to pay to plaintiff, the sum of two hundred and forty-eight and twenty-five one-hundredth dollars.”
    
      Andrew L. Gardiner, for plaintiff (appellant).
    
      Adolph Simis, Jr., for defendant (respondent).
   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.  