Opinion
November 10, 1939.
Present — Sears, P.J., Crosby, Cunningham and Taylor, JJ.
Order reversed on the law, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, the account to be filed on or before December 7, 1939. Memorandum: The court below denied the motion of the plaintiff asking that the defendants be required to file an account in the form and manner prescribed by the interlocutory judgment, and held that written objections to the form of the account should be filed and considered by the referee to whom the matter had been referred for adjustment of the account. In this case the form of the account has been prescribed in the interlocutory judgment. The account filed by the defendants does not comply with such provisions of the interlocutory judgment. Under such circumstances, the plaintiff has the right to apply to the court for an order directing the defendants to file an account in the form and manner prescribed by the interlocutory judgment. An account of that character would permit the plaintiff to file objections to the specific items, thus raising an issue as to the correctness of such items and placing upon the defendants the burden of proving the correctness of such items. ( Vernon Metal Produce Co., Inc., v. Joseph Bros. Co., 241 N.Y. 544). As part of their account the defendants have filed a list of sales of cone type mufflers from November 28, 1927, to December 31, 1927, specifying the names of the various purchasers, the invoice numbers, catalogue numbers, quantities sold and the list selling price. If this list contained the cost of production of the mufflers it would comply with the interlocutory judgment for the period covered by it. The fact that the defendants have given so much information in this list indicates that they are able to comply with the terms of the interlocutory judgment. The account as filed does not conform to the terms of the interlocutory judgment, and the defendants must file an account in the manner and form prescribed by paragraph 13 of the interlocutory judgment, as modified by this court. All concur. (The order denies plaintiff's motion for an order directing defendants to file a statement of account.)