
    SUPREME COURT.
    Valentine Sauppe, respondent, agt. William W. Bush, appellant.
    Where defendant appeals to the general term from an order requiring him to serve on plaintiff’s attorney a copy of an account set up in his answer, or be precluded from giving the same in evidence on the trial, and subsequently to the appeal, and on the same day, serves a copy of the account on plaintiff's attorney—he will be allowed to elect, on the hearing of the appeal, to take either an order affirming the order appealed from, or an order dismissing the appeal with $10 costs.
    
      Eighth District General Term, November, 1869.
    
      Present, Marvin, Lamont, and Barker, Justices.
    
    Action to recover on a “mutual, open, and current account” for goods sold and delivered, at different times, and m different amounts, after certain items of payment admitted. Answer denies indebtedness to plaintiff and alleges by way of counter-claim work and labor performed, and money expended by defendant for plaintiff, at his request, at divers times and amounts, and demands judgment. Reply, denying all allegations constituting a counter-claim.
    An Order was made at Niagara special term, September, 1869, (Lamont, J.,) requiring defendant within ten days after service of said order to serve on plaintiff’s attorney a copy of the account alleged in defendant’s answer, and if such account should not be so served, then defendant to be peecluded from giving evidence of such account on the trial; $7 costs of motion to plaintiff. On the last day for service of said copy account, defendant served notice of appeal from said order, and on the same day, a few hours after, defendant also served a copy of his account. The case now came before the general term, on defendant’s appeal from the order of. special term, and on a motion by plaintifij heard at the same time, to dismiss the appeal.
    P. L. Ely, counsel for appellant,
    
    
      Cited Johnson agt. Mallony, (2 Robt., 681,) and contended that section 15g, Code, referred only to the action legally known as an action for an accounting.
    
    James F. Fitts, contra,
    
    Contended that the case cited was obiter, and should not be adopted by this court, and in support off his motion to dismiss appeal, on the ground that the same is waived by service of copy of account, cited (Radway agt. Graham, 4 Abb., 468; Peel agt. Elliott, 16 How., 483; Lanman agt. Lewiston R.R. Co., 18 N. Y., 493; Bennett agt. Van Syckel, Id., 481; Ubsdell agt. Root, 3 Abb., 142.)
   By the court, Marvin, P. J.

The respondent may have either an order affirming the order appealed from, or an order dismissing the appeal, with $10 costs.

Appeal dismissed.  