Canavan Bros. v. Automobile Club of America — 121 A.D. 751

Majority

p. 751

Canavan Brothers Company, Appellant, v. The Automobile Club of America, Respondent.

First Department,

November 8, 1907.

Headnote

Practice — reference.

A motion for the reference óf an action to recover sums due for- work and materials furnished should be denied if a jury trial, is practicable.

Appeal by the plaintiff, Canavan Brothers Company, from an order of the Supreme Court, made at the New York Special Term

p. 752

and entered in the office of the clerk of the county of Mew York oh the 2.6th day of July, 1907, denying the plaintiff’s motion to refer the above-entitled action to a referee" to be appointed by the court.

This is an action to recover a certain balance claimed for work done and materials furnished to the defendant. - The complaint sets out two causes of action: First, to recover under a contract for excavations at unit prices fixed therein and for additional work done upon written orders, of the architect; and, second, to recover under a contract to do certain shoring work at specified prices and for various items of additional work as ordered by the architect.

Franklin Nevins, for the appellant.

William W. Niles, for the respondent.

While the court had power to refer the issues in this action to a referee for trial the parties had á right to a trial by jury unless it clearly appeared that such a trial was impracticable. As the court at Special Term has decided that such a trial was practicable and has, therefore, denied the motion for a reference, we do not think that upon these papers we should reverse that determination. The affirmance of this order, however, is without prejudice to the court at Trial Term when the case should - be brought on for trial, Ordering the issues to be tried before a referee if it should then appear that a trial by a jury was impracticable.

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements of the appeal to the party in whose favor final judgment is awarded.

Patterson, P.J., Clarke, Scott and Lambert, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements to the party in whose favor final j udgment is awarded. Settle order on notice.!-; -