
    Peter A. Mullin vs. James H. Kelly.
    Where Plaintiff moved for a reference in an action of assumpsit, his bill of particulars containing four items, including a promissory note—and after motion papers served, Defendant’s attorneys served Plaintiff's attorney with a stipulation agreeing to admit Plaintiff’s cause of action as to all the items, except the execution and delivery of the promissory note; and to strike out Defendant’s notice of set-off, served with the plea of general issue; held, that the stipulation was sufficient to preclude the Plaintiff a reference, without costs of the motion; costs would have been given Defendant, if his offer to stipulate had been made before the motion papers were served.
    
      December Special Term, 1846.
    
      Motion ly Plaintiff for reference.—This was an action of assumpsit—Plaintiff’s bill of particulars contained four items, one of which was a promissory note.
    Defendant pleaded the general issue with notice of set-off, in the -usual printed form.
    
      Plaintiff moved for a reference on an affidavit stating that the trial of the cause would require the examination of a long account on the part of the Plaintiff, and that if Defendant’s notice of set-off was true, it would also require the examination of a long account on the part of the Defendant.
    Defendant’s papers showed that after the papers for this motion were served, Defendant’s attorneys, in order to avoid the motion and a reference, served on Plaintiff’s attorney a stipulation, to admit the Plaintiff’s whole cause of action and the items contained in his bill of particulars, except that the Defendant would traverse and deny the execution and delivery of the promissory note mentioned in the bill of particulars. And also stipulated that the Defendant’s notice of set-off might be stricken out, and no evidence should be given under it. Plaintiff’s attorney refused to withdraw the motion.
    S. S. Bowne, Plffs Counsel. L. Farrar, Plffs Atty.
    
    L. Birdseye, Defts Counsel. Dwinelle & Campbell, Defts Attys.
    
   Jewett, Justice.

Denied the motion without costs, on the ground that the Defendant’s attorneys had stipulated to admitthe Plaintiff’s cause of action as to all items, except the execution and delivery of the promissory note declared on, and to strike out Defendant’s notice of set-off. Had the Defendant’s stipulation been served or offered before the motion papers were served, the motion would have been denied with costs.  