
    David Carr, plaintiff, vs. Fred'ck Wehrnan et al. defendants.
    In an action to foreclose a mortgage, the defendants claimed, in their answer, that the mortgage was given to secure subsequent advances or liabilities, and that on the transactions arising therefrom the plaintiff owed the defendants a sum of money, for which the defendants had brought an action, in another court.' A reply to such answer merely denied any counter-claim. The defendants moved for a reference to take an account, before the trial. The plaintiff opposed the' motion by an affidavit setting up an account stated.
    
      Held that as the case was one in which the fact of the settlement could be tried by a referee, under section 254 of the Code, it was proper it should be so tried.
    (Before Robertson, Ch. J. at special term,
    April, 1864.)
   Robertson, Ch. J.

This is an action for the foreclosure of a mortgage. The defendants claim in their answer that such mortgage was given to secure subsequent advances or liabilities, and that the plaintiff owes the defendants a sum of money on the transactions between them for which the defendants have brought an qction in another court. The only reply is a denial of any counter-claim set up in the answer. The present motion is made by the defendants for a reference to take an account before the trial. The plaintiff sets up in his. affidavit, in opposition, an account stated which is testified to by three witnesses. The defendants, by rebutting affidavits, deny such settlement,

If the plaintiff had thought proper, in his complaint, to state all the facts of the case including the settlement, the defendants would have had an opportunity of taking issue on it and the case would have rested on such issue. As, however, the case is one in which the fact of such settlement can be tried by a referee, under section 254 of the Code, it is proper it should be so tried; so that if the fact is found in favor of the plaintiff, by such referee, judgment may be rendered on the trial without examining into the state of the accounts, (Code, § 272, par. 1,) or, if against it, that an accounting may also be ordered, before a referee, of all the transactions between the parties.

The form of the order may be settled on two days’ notice. The reference is to be made to Murray Hoffman, Esq.  