Opinion
August, 1898.
Earley Prendergast, for appellant.
Thomas C. O'Sullivan, for respondents.
The complaint sets up a cause of action on contract (promissory notes). The answer pleads failure of consideration, in that plaintiffs never furnished the various kinds of articles and materials by them agreed to be furnished, and for which said note was given.
The fact that the items of the various articles which make up the consideration of the notes are numerous, does not make the action one on an account. Allentown Mills v. Dwyer, 26 A.D. 101.
The issues raised entitled defendant to a jury trial.
Order reversed, with costs, and motion denied, with costs to the defendant-appellant.
OLCOTT, J., concurs.
Order reversed, with costs, and motion denied, with costs.