Ludlow v. American Exchange National Bank , 59 Barb. 509 ( 1871 )

By the Court, Cardozo, J.

Judges Barnard and Brady have both held this case to be referable. I think they are right. The complaint, in the 3d and 4th sections, shows that the property, the subject of the suit, was to be held and applied not only in liquidation of the indebtedness mentioned in the complaint, but of all future advances which the defendants might make; that further advances were made, by the bank, by payment of calls on the certificate which it is sought to redeem'; and an account will have to be taken of these advances, and also of the payments made by the plaintiff. This account is necessary to be taken before judgment, and, I think, makes tlie case referable. And if so, the discretion of the judge granting the motion should not be reviewed on appeal.

[First Department, General Term, at New York, April 3, 1871.

I am for affirming the order.

Order affirmed.

Ingraham, P. J., and Cardozo and Geo. G. Barnard, Justices.]