
    Mari A Cumming, App’lt, v. William M. Whiting, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 18, 1887).
    
    Practice—Reference—When cause referable
    The complaint in an action set out two causes of action, one'upon an account stated and the other for goods sold and delivered and money loaned The bill of particulars served in the action relating to the second cause of action, consisted of twenty-two items of goods sold and cash advanced. The defendant by his answer denied each and every allegation of the complaint relating to the first cause of action, and also denied each and every allegation of the complaint relating to the second cause of action. The defendant then alleged that the plaintiff and defendant were copartners in business, and that the indebtedness alleged in said second cause of action was incurred, if at all. by said partnership, and not otherwise Held, that the true issue was as to whom the goods were sold; that, the causes of action were not referable.
    Appeal from an order of reference.
    
      Alfred B. Cruikshank, for app’lt; Frederick Seymour, for resp’t.
   Van Brunt, P. J.

The complaint in this action sets out-two causes of action, one upon an account stated, and the other for goods sold and delivered and money loaned. The bill of particulars served in the action relating to the second cause of action consisted of twenty-two items of goods sold and cash advanced.

The defendant by his answer denied each and every allegation of the complaint relating to the first cause of action, and also denied each and every allegation of the complaint relating to the second cause of action.

The defendant then alleges that the plaintiff and the defendant were copartners in business and that the indebtedness alleged in said second cause of action was incurred, if at all, by said partnership, and not otherwise.

It is clear that the first cause of action being upon an account stated was not referable. There could be no issue as to items, the only question being as to whether the account had become stated between the parties and whether there had. been a promise to pay.

Upon a cursory examination of the pleadings as to the second cause of action, it might appear that controversy would arise as to all the items of goods sold and money loaned because of the general denial contained in the answer, but the subsequent allegations therein contained as to the copartnership, and that the indebtedness was incurred, if at all, by said partnership, show what the true issue is, and that it is not as to the sale and delivery of the goods, but as to whom they were sold.

This being the true issue, there does not seem to be any ground for a reference.

The order appealed from must be reversed, with ten dollars costs and disbursements to appellants, to abide the final event of action.

Daniels and Bartlett, JJ., concur.  