Bushnell v. Eastman — 2 Abb. Pr. 411

Majority

p. 411

BUSHNELL against EASTMAN.

Supreme Court, Second District; Special Term,

1866.

Headnote

Reference.—Trial by Jury.

An action to set aside a fraudulent conveyance, on the ground that it was made when the defendant was insolvent, is not to be referred as involving the examination of a long account.^[1]

Motion for a reference.

This action was brought by Cornelius L. Bus'mell against Smith J. Eastman and Levi Eastman: The plaintiff sued on

p. 412

his own behalf and on behalf of such other creditors as might come in and contribute to the expenses of the action. . The object of the action was .to set aside a conveyance or mortgage made by'the defendant, Smith J., to the defendant Levi, on allegations that it was made with an intent to delay, hinder and defraud Ids creditors.

The plaintiff now moved for a reference of the action, arguing that it would involve the examination of a long account to determine the question of solvency or insolvency.at the time of the making of the conveyance.

Barney, Butler & Parsons, for the motion.

Mr. Jencks, opposed.

Conceding the existence of a power to order a compulsory reference in this case, I consider it is not a proper case for its exercise. The question to be determined relates to the legal effect of certain transactions between the principal defendant and members of his family. An examination of an account is not directly involved, but can become necessary only as a mode of proving a fact in controversy ( 19 Wend., 108 ; 10 Abb. Pr., 333 ). A defendant sued for a libel charging a merchant with being insolvent, might demand a reference on the same ground. Courts of justice are the appropriate places for determining the rights of parties litigant. References are proper only as aids to facilitate the transaction- of business. The growing multiplication of them within the last fifteen years has been an evil prolific of individual injustice and public alarm. I am not disposed to encourage, but rather to restrain the practice on this subject. It may be added that one of the reforms intended to be accomplished by the new judicial system under our present constitution, was the abolition of the old practice in equity cases, of taking testimony out of the court before examiners in chancery, and afterwards determining the case on pleadings and proof. To refer such cases without consent, would in some instances be not only to restore, but to add to the evil!

The motion is denied, with $10. costs, to abide event.