Kain v. Delano — 11 Abb. Pr. 29

Majority

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KAIN against DELANO.

Court of Appeals;

November, 1870.

Headnote

Appealable Order.—Substantial Right.—Jury Trial.—Compulsory Reference.—Discretion of Judge.

The right of trial in the mode and by the tribunal prescribed by law, is a substantial right, and a party cannot be deprived of it in the discretion of the judge.

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A compulsory reference of an action as involving a long account, can be ordered only where the accounts to be examined are the immediate object of the suit or the ground of the defense. They must be directly and not incidentally and collaterally involved.

Where such an order was granted on the pleadings and the affidavit of the plaintiff’s attorney, which stated generally that the trial would require the examination of a long account, but without.stating how or why, and this statement was fully and circumstantially denied in the affidavit of the defendant, and it appeared by the pleadings that the claim of the plaintiff was upon a written contract and for the recovery of a single and specified sum of money;—Held, that there was no evidence that the trial would involve the examination of a long account, and that an order granting a compulsory ' reference might be reviewed by the court of appeals.

The moving papers must show that the account is necessarily involved. A general allegation of the fact is not enough.

Appeal from, an order.

This action was brought in the supreme court, by William 0. Kain against Franklin H. Delano and Peter B. Olney.

The plaintiff claimed, as assignee of a contract respecting the collection of a judgment, to recover money received by the original holder of the judgment, or his assignee who took subject to the.contract ; and the defense relied on was that the plaintiff’ s assignors had been indebted to -the judgment debtor, and that they had received the amount claimed by its being credited to them by the judgment debtors in account.

The complaint alleged that the defendant, Delano, having recovered a judgment against the Knoxville and Kentucky Railroad Company, for §31,025.16, made a written agreement with Powell, Green & Co., by which' he. received from them §20,588.65, partly in money and partly in notes, agreeing, in consideration thereof, to assign to them the judgment, upon the payment of the notes, or that, if Powell, Green & Co. should indemnify him against all costs,

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counsel fees, expenses, &c., he would at any time before the payment of the notes proceed to enforce the judgment, and after paying the notes, and the counsel fees, expenses, &e., he would pay the balance to Powell, Green & Co. The plaintiff also alleged that he was the assignee of Powell, Green & Co., and entitled to all their rights under the contract. He then alleged that Delano assigned the judgment and his interest in the contract with Powell, Green & Co., to the defendant Olney, who had sold and assigned the judgment to the Knoxville and Kentucky Railroad Company, and received a sum sufficient to" pay the notes and leave a balance of $3,035.16. This balance the plaintiff claimed to recover by this action.

The answer of Delano alleged that the notes remained unpaid, and denied that he received any greater sum than the amount of the notes, and denied information, &c. , as to whether the plaintiff was assignee of the rights of Powell, Green & Co., or Olney had assigned the judgment to the railroad company. It then set up that Powell, Green & Co. had failed to indemnify defendant, as they were bound by a condition precedent to do, and that they were insolvent. It further alleged that the defendant Delano had obtained a warrant of' attachment in the suit against the Knoxville and Kentucky Railroad Co., under which the sheriff had seized sixty thousand dollars’ worth of bonds belonging to the company, which were in the hands of Powell, Green & Co., and that after the levy under the attachment, these bonds had been converted by Powell, Green & Co., who afterward, to settle with the railroad company, agreed to pay the judgment in favor of Delano, and that the railroad company thereupon credited Powell, Green & Co. with the amount of the said judgment. The answer also alleged, that the plaintiff was counsel for the railroad company in the transaction, and had knowledge of the terms

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thereof and of the agreement on the part of Powell, Green & Co. The answer of Olney was substantially to the same effect.

The plaintiff moved on the pleadings, and his affidavit, for an order of reference.

The affidavit, after stating the cause of action, simply stated that there was set up as a defense “a large indebtedness of Powell, Green & Co., to the Knoxville and Kentucky Railroad Company, and that the trial of that issue would require the examination of a long account, involving very numerous items of charges and credits, amounting to many thousand dollars, -and extending over several years.” The defendant putina counter affidavit expressly denying that the trial would involve the trial of any such long account.

The motion for a reference was granted, and the order having been affirmed by the court at general term, the defendant appealed to the court of appeals.

Francis C. Barlow, for defendants, appellants.

I. The order is appealable. An appeal may be taken to the general term when it “ affects a substantial right ” (Code of Pro., § 349, subd. 3, as amended in 1852). Gray v. Fox(1 Code Rep. N. S., 334), was decided before the amendment of 1852. Bryan v. Brennon ( 7 How. Pr., 359 ), though decided in 1853, was decided ex--pressly on the terms of the Code as- it stood before amendment. Smith v. Dodd (3 E. D. Smith, 348), is based on Gray v. Fox (supra), and was made by Judge Woodruff, who afterwards repudiated Gray v. Fox, and laid down the second rule (Whittaker v. Desfosse, 7 Bosw., 678 ). The true rule is stated in Dean v. Empire State Mut. Ins. Co. ( 9 How. Pr., 69 ), and Whittaker v. Desfosse ( 7 Bosw., 678 ).

II. The general term entertained such an appeal, in Freeman v. Atlantic Mut. Ins. Co. ( 13 Abb. Pr., 124 ), and in Dickinson v. Mitchell (19 Id., 286). A “substan

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tial right” is defined in Tallman v. Hinman ( 10 How. Pr., 89 ).

III. The true rule is that if there is evidence enough before the special term to call for a judicial determination upon the question whether a long account is involved, the decision of the special term will not be reviewed.

IY. The order is in the discretion of the court only when there is sufficient evidence that a long account is insolved.

Y. The decision of the judge as to how many items constitute a long account, may be reviewed on appeal, and was so reviewed in Harris v. Mead ( 16 Abb. Pr., 257 ), and Dickinson v. Mitchell (19 Id., 286 ). Where a question is determined on affidavits, the general term has the same opportunities to get at the truth as the-special term) See Daly, J., in Brodsky v. Ihms ( 16 Abb. Pr., 251 , 256), and Bates v. Voorhees ( 20 N. Y., 525 .)

YI. There was no evidence to show that the case would involve a long account. The answer does not set up a large indebtedness of Powell, Green & Co., as a defense. The only question is, whether Powell, Green & Co., “ undertook and assumed to pay certain judgments,” and whether the railroad company “ credited the firm with that amount.” The only question of debit and credit is whether this one item is credited.

W. C. Kain, plaintiff and respondent, in person.

I. The order of reference is not appealable. The order is one which rests in the discretion of the judge, and is not subject to review by the general term or the court of appeals (Tabor v. Gardner, 41 N. Y., 232 ; Ubsdell v. Root, 3 Abb. Pr., 142 ; Gray v. Fox, 1 Code Rep. N. S., 334 ; Bryan v. Brennon, 7 How. Pr., 359 ; Dean v. Emp. State Mut. Ins. Co., 9 Id., 69 ; Smith v. Dodd, 3 E. D. Smith, 348 ; Kennedy v. Shilton, 9 Abb. Pr.,

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157 , note; People v. Haws, 12 Id., 204 ; Tallman v. Hinman, 10 How. Pr., 89 ).

II. Even if the order was appealable, the defendants, by appearing on the reference, proceeding with the trial, and failing or omitting to obtain a stay of proceedings, have waived any right of appeal (Ubsdell v. Root, 3 Abb. Pr., 142 ; Renouil v. Harris, 1 Code R., 125 ; Combs v. Wyckoff, 1 Cai., 147 ).

IH. A reference may be ordered whenever it appears that the trial of any one of the issues will involve the examination of a long account, although the examination of'some other issue may render it unnecessary to try the first named issue at all (Batchelor v. Albany City Ins. Co., 6 Abb. Pr. N. S., 240).

IY. If there is any evidence laid before the court below, that the examination of a long account will be required, or if there is a conflict of proofs by counter affidavits, then the determination of the court below must be held final and conclusive (Id.). The court of appeals will not reverse a judgment entered on the report ■of a referee, on the ground that the action was not referable, if it be one that might require the examination of a long account (Court of Appeals, 1864, Van Marter v. Hotchkiss, 1 Keyes, 585).

Y. The asserted indebtedness of Powell, Green ■& Co., is the very essence of the defense, and is a point which the plaintiff has a right to contest.

The class of orders •appealable to this court was enlarged by the amendment of section 11 of the Code, in 1870. By subdivision 4 of that section, as then amended, an appeal was given in' an order affecting a substantial right not involving any question of discretion arising upon any interlocutory proceeding, or upon any question of practice in the action.

The right of a trial, in the mode and by the tribunal

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prescribed by law, is a substantial right, and it does not rest in the discretion of the court to deprive a party of that right, or to compel him to submit to the trial of an action, except in the manner and in the forum authorized by law. The law only authorizes a compulsory reference of a single class of cases, viz: those actions in which the trial of an issue of facts will require the examination of a long account; and when not referable under the statute, they must be tried either by a jury or by the court, unless the parties assent to some other form of trial (Code of Pro., §§ 253, 254, 270, 271).

The Constitution secures to parties a trial by jury in certain cases, and neither the court nor the legislature can deprive them of that right (Const., Art. 1, § 2 ; Townsend v. Hendrickson, recently decided by this court); and no action can be referred for trial without the consent of the parties, except as authorized by statute.

This action is upon contract, and belongs to that class which may be referred, if within the terms of the statute;. and the trial will require the examination of a long account “upon either side.” If there was evidence upon which the court below could have decided that the trial would involve such examination, this court would not review the decision ; that is, it would not sit in judgment upon a question of fact, passed upon by the court below, upon competent evidence fairly calling for the exercise of the judgment of that court. But there is no evidence bringing this case within the statute, or showing that the trial can involve the examination of a long account “upon either side.”

The plaintiff in his affidavit states generally, that the trial “ will require the examination of a long account, involving very numerous items of charges and credits, amounting to many thousand dollars, and extending over several years,” but does not state how or why this is so, and this statement is very circumstantially

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and fully denied in the affidavit of the defendants. A reference to the pleadings discloses the fact that the claim of the plaintiff is upon a written contract, and for the recovery of a single and specified sum of money; that is, the plaintiff’s claim consists of a single item.

The defendants do not allege or set up any counterclaim, or any defense, resting upon or calling for the examination of an account between the parties to the action. As new matter, there is set up by way of defense, a single transaction, viz: an agreement between the plaintiff’s assignor, with the knowledge and assent of the plaintiff, and the Knoxville & Kentucky Railroad Co., which, it is claimed, exempts the defendants from their liability upon the alleged contract, which is the foundation of the action. In other words, a new agreement is alleged in bar of the action, and the defense, if it can be sustained, rests upon the alleged agreement, and although it was suggested, it is not easy to see how the examination of the accounts and dealings between Powell, Green & Co. and the railroad company, if there are such accounts, can be material or relevant to the issue made by the answer.

The case shows that under the pleadings there are no long accounts between the parties to be examined, and it is not shown that there are long accounts between other parties, the examination of which can be at all pertinent to any issue in the action. As the accounts which it is suggested may be involved are not between the parties to the action, and not the immediate object of the suit or ground of defense, the moving party should, in any event, have shown how, and in what way, the examination of them will become necessary upon the trial. But the statute does not authorize a compulsory reference when the accounts will arise and come in question collaterally. They must be the immediate object of the suit or the ground of the defense, that is, directly, and not collaterally or incidentally in

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volved (Code, § 271; Laws of 1801, ch. 90, § 2; 1 K. & R., 347 ; Todd v. Hobson, 3 Johns. Cas., 517 ).

The order must be reversed and the motion for a reference denied, with costs.

Grover and Peckham, JJ., dissented.

Order reversed and motion denied, with costs.