Opinion
June 11, 1915.
Henry S. Mansfield, for the appellant.
Abraham L. Doris, for the respondent.
It is the complaint which ordinarily determines if the action is one which may be compulsorily referred ( Steck v. Colorado Fuel Iron Co., 142 N.Y. 236), and if the matters of an account of over fifty items appearing on the face of the complaint are put in issue by a general denial, the examination and proof of this long account are directly involved. The referable character of issues thus made on the answer cannot be defeated by the attempt, through an affidavit by defendant's attorney, to make it appear that some matters in the account will not be questioned, since an attorney cannot in this way undo his client's sworn denials. ( Kennedy v. Kenna, 49 How. Pr. 308.)
The order of reference is, therefore, affirmed, with ten dollars costs and disbursements, with liberty, however, to the appellant to apply at Special Term to vacate the order of reference upon his stipulation admitting the correctness of the account.
JENKS, P.J., THOMAS, STAPLETON, MILLS and PUTNAM, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements, with liberty, however, to appellant to apply at Special Term to vacate the order of reference upon his stipulation admitting the correctness of the account.