White . Fuller.

the question as to whether the contract finally made was intended by the parties to be the contract of the defendant, was, in the view we take of this controversy, of no importance. The first contract was, in effect, a memorandum one only, and was abrogated by the second, which contained the agreement between the parties in full. The question whether the parties to it intended it to be the contract of the defendant was not at all in doubt. It was conceded that they did so intend, and it was wholly immaterial whether they did or not. The issues were whether Chamberlain & Co. of the one part were authorized to make any contract for the defendant, and, if yea, whether as to time contracts the plaintiffs were not bound by the custom on that subject. The refusal to grant the request was for this reason properly made.

There are other exceptions in the case which have not been particularly referred to here, but they are of no importance. They do not in any way affect or control the principles of law on which this appeal depends, and the matters to which they relate are not material elements in regard to such principles, or their application herein. They have no value, and it is deemed sufficient, therefore, to dispose of them in this general way. The plaintiffs' case seems to have been conducted, if we are to judge of it by the exceptions to evidence, on the theory that the defendant could scarcely answer successfully, without meeting its obligations, a contract made between the plaintiffs and him through the intervening agency of a person apparently authorized to act as such; and although there is much force in the position, a defendant may nevertheless be able to overcome it by proof of facts and circumstances warranted by the rules of law and evidence.

In this case the proof of custom was sufficient for the purpose, aside from that given, to put the plaintiffs in such legal relation to him by his notice that he would

Mayor &c. of New York v. Genet.

not fulfil the contract, as to render them powerless in

the premises.

The judgment should be affirmed with costs. (a)

Judgment affirmed.

[FIRST DEPARTMENT, GENERAL TERM at New York, May 3, 1875. Davis, Brady and Daniels, Justices.]

(a) S. C., reported briefly, 4 Hun, 631.

THE MAYOR &c. OF THE CITY OF NEW YORK vs. HENRY W. GENET.

A complaint alleged that the defendant had drawn and received from the comptroller of the city of New York a very much larger sum than was due for services, labor and materials necessary for, and which had been rendered and furnished in and about the construction and erection of a court house. The answer denied this allegation. Held, that an issue was thus presented which would probably involve the items of the accounts for labor and materials expended and used in the erection of said building; and hence the action was one which the court was fully anthorized to refer, under section 271 of the Code.

Held, also, that although the action was not upon an account, yet the trial of the issue would involve 'the examination of a long account," which made the cause a referable one.

The Code, however, does not require such an action to be referred. The court may try it, if it pleases, and a trial without the reference is not erroneous. The issue in a cause was joined in July, 1874. It was upon the calendar of the Circuit Court, for trial, in December, 1874. The defendant, instead of moving that court, before the judge holding such circuit, moved, in another branch of the same court, before another judge, to take the cause from the trial court and send it to a referee. And this motion was delayed until after preparation for the trial had been made, and the plaintiffs were presumably ready with their witnesses, and the cause was on the day calendar for trial. Held, that to order a reference under these circumstances, would be to encourage delay, and the motion was therefore properly denied.

A

PPEAL from an order of the Special Term denying

a motion made by the defendant for a reference.

Mayor &c. of New York v. Genet.

Oliver W. West, for the appellant.

John E. Parsons, for the respondents.

By the Court, WESTBROOK, J. The gravamen of the complaint in this action is, that the defendant has drawn and received from the comptroller of the city of New York, a very much larger sum of money than "was due for services, labor and materials necessary for, and which had been rendered and furnished in and about the construction and erection of a court house and place for the detention of prisoners, within the limits of the Ninth Judicial District of the city of New York." The answer denied this allegation. An issue is thus fairly presented, which will probably involve the items of the accounts for labor and materials expended and used in the erection of said building. It was, therefore, a cause which the court was fully authorized to refer, under section 271 of the Code. It is true the action was not upon an account, but the trial of the issue, doubtless, involves "the examination of a long account," which makes the cause a referable one; and that the opinion at Special Term concedes.

The Code, however, does not require such an action to be referred. The court may try it, if it pleases, and the trial without the reference is not erroneous. The issue in this cause was joined in July, 1874. It was upon the calendar of the Circuit Court for trial in December, 1874, and the judge holding such court had full power over it. Instead, however, of moving that court, upon the calendar of which it was placed for trial, the defendant moves in another branch of the same court, before another judge, to take it from the trial court and send it to a reference; and this motion is delayed until the cause is on the day calendar for trial. The plaintiffs are presumed to be ready with their witnesses, the defendant by no movement or notification undeceives, and after

Pacific Mail Steamship Company v. Irwin.

preparation for the trial is made, the motion for a reference is unexpectedly sprung upon them. It would, it seems to us, encourage delay if the discretion of the court had been exercised in favor of the defendant, and for that reason the reference was properly denied.

An order should be entered affirming, the decision of the Special Term, with $10 costs, besides disbursements, but without prejudice to the right of the trial court to make such a disposition of the action as it may see fit to do. (a)

Ordered accordingly.

[FIRST DEPARTMENT GENERAL TERM, at New York, May 3, 1875. Brady, Daniels and Westbrook, Justices.]

(a) S. C., reported very briefly, 4 Hun, 658.

THE PACIFIC MAIL STEAMSHIP COMPANY vs. IRWIN.

An answer alleged that very large discretionary powers in regard to the control and management of the affairs and property of the plaintiff and in regard to the expenditure and disbursment of its funds, were conferred upon S., its president. In a succeeding paragraph it was alleged that S. had abused such discretion and misapplied, squandered and wasted the funds, including the sums mentioned in the complaint for which the defendant was prosecuted. Held, that the allegation in the first paragraph was necessary for the intelligent statement of the defence set up in the second paragraph; and that, being in the nature of a preamble or introduction, it was not open to the charge of irrelevancy.

The answer also alleged that the plaintiff, for a good and valuable consideration, and upon a full settlement concluded between it and the said S., relinquished and discharged any and all claims in regard to the same, either against the defendant or any other person. Held, that the defence thus set up was by way of accord and satisfaction; and if the agreement was made as stated, it would be binding upon the plaintiff as a contract; whether in writing or otherwise.

A writen release is not necessary to create an accord and satisfaction, or a full settlement and discharge.

Pacific Mail Steamship Company v. Irwin.

A defendant, having stated a defence, in his answer, is not bound so to define it, or rather enlarge it, as to set out the proofs by which it is to be established. On application to strike out an answer as irrelevant, it must appear that the matter objected to is indeed irrelevant, and that the party is aggrieved thereby. It was not designed that such an application should be granted. for every redundant averment or statement in a pleading. Per BRADY, J. An answer is indefinite when the precise nature of the defence is not apparent.

A

PPEAL, by the plaintiff, from an order made at

a Special Term, denying a motion to strike out the answer as irrelevant, &c. (S. C., very briefly reported, 4 Hun, 671.)

H. S. Bennett, for the appellants.

R. H. Scott, for the respondent.

By the Court, BRADY, J. The answer in this action contains nothing which should be stricken out as irrelevant, or which should be made more definite and certain. The paragraph containing the statement that very large discretionary powers in regard to the control and management of the affairs and property of the plaintiffs, and in regard to the expenditure and disbursment of its funds, were conferred on its president, Alden B. Stockwell, is necessary for the intelligent statement of the defence set out in the succeeding paragraph, and which is that he had abused the discretion and misapplied, squandered and wasted its funds, including the sums mentioned in the complaint for which the defendant was prosecuted; and further, that the plaintiff for a good and valuable consideration, and upon a full settlement concluded between it and the said Stockwell, relinquished and discharged any and all claims in regard to the same, either against him, the defendant herein, or any other person whomsoever.

The defence thus set up is by way of accord and satisfaction; and whether a formal release exists or not does