Connor v. Jackson — 53 A.D. 322

Majority

p. 322

John J. Connor and Michael Connor, Copartners in Business under the Firm Name and Style of Connor Brothers, Respondents, v. John J. Jackson, as Executor, etc., of Margaret Jackson, Deceased, Appellant.

Headnote

Reference — where a cause of action involving a long account is joined with others, all of which might have been stated in a single cause of action.

The complaint in an action set up three causes of action, the first for a balance due for goods sold and delivered, the second for rent, and the third for money-paid for the use of the defendant’s decedent. All the causes of action arose out of a single transaction, and the plaintiff’s entire claim might properly have been stated in one cause of action composed of three different items.

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Reid, that, under the circumstances, the fact that the trial of the first cause of action involved the examination of a long account afforded a sufficient reason for directing a reference of the entire action, it not appearing that it was the purpose of the plaintiff, in joining the three causes of action, to deprive the defendant of his right to a j ury trial of the second and third causes of action, which did not involve the examination of a long account.

Appeal by the defendant, John J. Jackson, as executor, etc., of Margaret Jackson, deceased, from an order of the Supreme Court, made at the Kings County Special _Tenn and entered in the office of the clerk of the county of Kings on the 11th day of May, 1900, granting the plaintiffs’ motion to refer the issues on the ground that the trial of the action would require the examination of a long account.

O. L, Harwood, for the appellant.

Herbert T. Ketcha/m, for the respondents.

The complaint sets out three causes of action: One, for a balance due for goods sold and delivered; the second for rent; and the third for money paid to the use of the defendant’s decedent. There is no doubt that the trial of the first cause of action will require the examination of a long account; and it is conceded that if the complaint contained nothing further the action would be referable. The appellant insists, however, that the examination of a long account will not be required in the determination of the issues arising upon the second and third causes of action, and that his right to a trial of those issues before a jury cannot be defeated by joining- them with a cause of action which is referable by compulsion.

The appellant would seem to be right in this position if it appeared that the joinder was for the purpose stated. (Place v. Chesebrough, 63 N. Y. 315 .) In the case cited the claim of the plaintiff, like the claim of the plaintiffs here, was set out in three separate causes of action, but the court held that it could have been properly stated quite as well in the form of one cause of action composed of different items, and, hence, it should not be inferred that a referable cause of action had been joined with non-referable causes with intent to deprive the defendant of his constitutional right to a jury trial.

The motion papers in the case at bar show that the claim of the

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plaintiffs arises out of a contract under which either the defendant’s wife or the defendant individually acquired a grocery business from the plaintiffs, together with a lease of the premises on which such business was carried on. The transactions growing out of the transfer effected by this contract appear to have constituted a long course of dealing, involving mutual charges and credits represented in a running account. In view of this fact, notwithstanding that some of the items in the account are for rent and some for money paid, while the larger number relate to the sales of goods, it seems quite clear that the plaintiffs’ claim in its entirety could have been stated as a single cause of action. If so, the doctrine of the Chesébrough case is applicable and the order of reference may be upheld.

All concurred.

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Place v. Chesebrough 63 N. Y. 315 N.Y. 1875-11-30 p. 323