Rutty v. Person

begins to run after the service of the reply, even though the issue raised by the counter-claim, is not to be so tried.

Difficult, numerous and complicated special issues should not be sent to a jury for trial, in a case triable by the court.

In an action to open accounts and for an accounting between alleged copartners, where there was an issue as to the partnership, and the defense of an account stated and settled, the court at special term . refused to refer the trial of the action to a referee. On appeal,— Held, no error; and that the court properly exercised its discretion in refusing to refer the action, until it became manifest that a reference would serve the ends of justice.

The plaintiff Rutty appealed from an order made at special term by Abnoijx, J., directing that certain special issues be framed, and as framed be tried by a

jury, and appealed separately from an order made by the same judge refusing to refer the issue for trial by a referee. Both appeals were heard at the same. time. The action was brought by the plaintiff who alleged that he was at a stated time a copartner of the defendants, A. Person, Harriman & Co., and that he had never received the proper account from defendants of the joint dealings, by reason of certain errors and discrepancies in those statements of such dealings which had been furnished to plaintiff by 'the defendants. The plaintiff prayed an account, and that the statements rendered might be disregarded or opened. On November 35, 1883, the defendants served their answer denying an intention to form a partnership with plaintiff, and setting up their version of the agreement, claiming that the plaintiff was defendants’ employee in regard to the matters complained of, but conceding that he had an interest in the profits of a joint venture in the importation of kid gloves from Europe to America; the defendants also pleaded an account stated and settled, and specially a composition of all differences in regard to the accounts, in consideration of which the defendants had allowed to plaintiff $30,500. The defendants claimed that this sum must be paid back before the accounts could be opened. The answer likewise interposed a counter-claim alleging that, as the defendants believed the plaintiff was not a copartner and therefore not chargeable with losses, they had not charged his account with his proper share of a loss on one consignment account, amounting to $30,000. The defendants prayed that, in case the accounts should be opened, then they be corrected to this extent only, as in all other respects they were just and true. On the same day, but a few hours after the service of the •answer, the defendants served a notice of motion for •an order directing certain special issues annexed to the notice to be framed and tried by a jury.

On November 28,1882, the plaintiff served his reply to the counter-claim, and on November 29, 1882, procured an order to show cause why the action should not be referred as involving the examination of a long account. Both motions were heard on all the pleadings, including the reply. The court at special term granted the defendants’ motion for the trial by jury of special issues as to the nature of the agreement, and to inquire whether an account had been stated and settled, and refused the plaintiff’s motion to refer the issues for trial by a referee. From the orders made on both motions the plaintiff appealed to the general term of the superior court.

I. The defendants’ motion for special issues was served before the service of the plaintiff’s reply to the defendants’ counterclaim and was therefore premature (Rules of Court, 31 ; O’Brien v. Bowes, 10 Abb. Pr. 106 ).

. II. The action is of a purely equitable nature, and is not triable by the jury (Tovrey v. Twombley, 57 How. Pr. 149 ; Covert v. Henneberger, 53 Id. 1; Colman v. Dixon, 50 N. Y. 572 ).

III. Although the right to order special issues in an equitable case is a matter within the judge’s discretion yet the proper exercise of that discretion is reviewable at general term. Martin v. Windsor Hotel Co., 70 N. Y. 103 , where it is said “ whether the parties should have the controversy determined by one tribunal or the other was a matter of substance and hence appealable” (Alling v. Fahy, 70 N. Y. 571 ; Howell v. Mills, 53 Id. 322).

IV. Even if the mode of trial is within the discretion of the court, such discretion has been abitrarily exercised and should not be sustained. The questions submitted to the jury are not susceptible of being

answered “yes” or “no.” The questions are complex, intricate and incomprehensible without careful analysis. For these reasons the motion for jury issues was not properly granted.

V. Upon the appeal from the order refusing to refer, the appellant submitted that the case involved the examination of a long account (Whitaker v. Desfosse, 7 Bosw. 678 , 681). Even though there are facts in issue preliminary to the taking of the account, yet the case was referable (Vanzant v. Cobb, 10 How. Pr. 348 ; Bachelor v. Albany City Ins. Co., 6 Abb. Pr. N. S. 240 ; Mills v. Thursby, 11 How. Pr. 113 ; Thurber v. Chambers, 4 Hun, 721 , 727; affd. in 66 N. Y. 421 ).

I. The motion to frame issues was heard on the reply, and it was immaterial when it was served. But as an abstract question, in moving after service of the answer and before the service of the reply, for an order requiring certain issues to be framed and tried by jury, the defendants followed the course which the law indicated. General Buie of Court 31, directs that such motion be made within ten days after issue joined. By § 964, Code Civ. Pro., issue was joined as to the affirmative issues of the complaint by service of the answer. Defendants did not desire the counterclaim tried by jury, nor could it have been so tried, as its existence depended upon the result of the jury issues.

II. Even if the General Buie of Court No. 31 is susceptible of any other construction, it is directory only, and the court might disregard-the direction. Buies of court'are statutes passed in the indirect legislative mode. (1 Austin's Jurispr. [Campbell’s ed.] p. 140; Holland's Form of the Law, 56). Directory statutes need not be precisely complied with ,(U. S. Trust Co. v. U. S. Fire Ins. Co., 18 N. Y. 199 , 220). -The court of its own

motion might order special issues at any stage of the case (Church v. Freeman, 16 How, Pr. 294 ; Paul v. Parshall, 14 Abb. Pr. N. S. 138; S. C., 1 Buff. Super. Ct. [Sheldon] 297). No unnecessary limitation of this power should be inferred.

III. Orders directing special issues in an equity case are not appealable (Wood v. Mayor, &c. of N. Y., 4 Abb. Pr. N. S. 152; Paul v. Parshall, [above cited] Clark v. Brooks, 2 Abb. Pr. N. S. 385,406). No purely discretionary order is appealable (Ludlow v. American Exchange Nat. Bank, 59 Barb. 509 ). The order directing special issues to be tried by a jury is wholly discretionary (Vermilyea v. Palmer, 52 N. Y. 471 ; Birdsall v. Patterson, 51 Id. 43).

IV. It was according to precedent to grant issues for trial by jury in a case for an accounting between alleged copartners, where there is an issue as to partnership or as to any material fact (Peacock v. Peacock, 16 Ves. 49, 52 ; Webster v. Bray, 7 Hare, 159, 165; Black v. Lamb, 1 Beasley, 108, 115; Clark v. Brooks, 26 How, Pr. 285 ; Wood v. Mayor, &c. of N. Y., 3 Abb. Pr. N. S. 467; Cocke v. Upshaw, 6 Munf. (Va.) 464; Drope v. Miller, 1 Hempstead, 49, 50), especially in a case like this, where the plaintiff should be subjected to orossexamination before accounts are opened (Fisher v. Porch, 2 Stockt. Ch. [N. J.] 243).

V. Upon the appeal from the order refusing to refer, the defendants submitted that the action, though an action for an account was, on the face of the pleadings, in reality not referable under the statute, as the account was not long (Kain v. Delano, 11 Abb. Pr. N. S. 29). An action for an original account is triable by the court, and the plaintiff can not try in this action any other issue (Weeks v. Hoyt, 5 Hun, 347 ). The taking of the account would be subsequent to the trial (Code Civ. Pro„ § 1015 ; Camp v. lngersoll, 86 N. Y. 433 , 437). But if the action is regarded as one to open an account, the

plaintiff by his allegations attacks only five items, and lie must be confined to these on the trial (Story's Eg. PI. § 800 ; Parkinson v. Hanbury, L. R. 2 Ho. L. 1; Weed v. Smull, 7 Paige, 573 ; Barker v. Hoff, 7 Hun, 284 ; Chubbuck v. Vernam, 42 N. Y. 432 ). Now, five ' items do not constitute a long account (Dickinson v. Mitchell, 19 Abb. Pr. 286 ), nor because the action involves figures and accounts is it necessarily referable (Evans v. Kalbfleisch, 16 Abb. Pr. N. S. 13; S. C., 36 Super. Ct. [J. & S.) 450, 458). The action involves the trial of difficult questions of law and is not referable on that ground (Code Civ. Pro. § 1013; Barnes v. West, 16 Hun, 68 ; Dane v. Liverpool, &c. Ins. Co., 21 Hun, 259 ), and the court has no inherent power to refer such a cause (Camp v. Ingersoll, 86 N. Y. 433 ). Even if the cause were referable, it was discretionary with the court below to refer or not as the power to refer, in a proper case, is permissive only (Goodyear v. Brooks, 2 Abb. Pr. N. S., 296 ; S. C., 4 Rob. 682 ; Wheeler v. Falconer, 7 Rob. 45 , 47). The order refusing to refer- is not appealable (Id. sup.). In any event there should be no reference in this case until the plaintiff establishes his right to an account.