Codwise v. Hacker — 2 Cai. 251

Majority

p. 251

Codwise and Ludlow against Hacker.

Headnote

If in cross suits one has been referred, in which all may be obtained that can be gained by a reference in the other, the court will not refer such other, especially if there be a possibility that by so doing the report may be so apportioned as to throw the costs of both on one party, who by a decision of the court seems to have a right to a verdict in his favor in one of the suits.

The plaintiffs had brought an action against the defendant for disobedience of orders. ' The declaration consisted of two special counts, and one for money had and received. A verdict having been rendered against the defendant, he, in February last, applied to set it aside, which being ordered, (Vol, 1, 526,) he instituted, for the recovery of his wages, money laid out, &c., a cross suit, in which the general issue only was pleaded. On this *being referred, it was agreed, by a consent endorsed on the plea, that everything might be shown in evidence in the same manner as if pleaded. At the reference the plaintiffs in this action perceived a report would probably be given in their favor, on the money counts in this suit, if they could also be referred, and, therefore, gave notice that they would apply for permission to refer the money counts, in this cause, on agreeing to no further prosecute the special counts for disobedience.

Bilcer (District Attorney)

resisted the application as involving in the discussion points of law, and being naade

p. 252

with no other intention than to endeavor to get the referees to apportion the balance they might report due, between the two suits, and thus give the plaintiffs costs on both. The full effect of this motion, he contended, had already been obtained; the now plaintiffs having, in the suit against them, set off everything they could against Hacker’s demands. He argued that it was plain the motion was only to avoid going to trial on the suit which they saw they must lose, because their demands on the counts they now relied on were settled by the reference, and as to tkf special counts, the former decision of the court had dei rmined those against them.

Upon an affidavit of the plainti/fs, that a suit of Hacker against them was depending in this court, which had been referred, and that the referees, it was apprehended, were inclined to report a balance in their favor, if the state of the pleadings would admit of it, I granted an order, in vacation, to stay the filing of the report of the referees in the suit in which Hacker is plaintiff, to give the plaintiffs, in this cause, an opportunity of making the present application.

Upon the state of facts now disclosed, it appears to me improper to grant the plaintiffs’ motion. By virtue of the consent endorsed upon the general issue, in the cause heretofore referred, the plaintiffs have their election to have the balance, which may appear due to them, reported in their favor, in that suit, or upon the trial of this cause, to recover such balance under the general counts. The circumstance that the trial of the cause will require the discussion and decision of important principles of law, affords a strong reason against the reference prayed for.

Let the plaintiffs take nothing by their motion, and pay the costs of resisting.

Motion denied.

*N. B. — Only TompkiNS and LiviNGSTON, Jus

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tices, were present at the application. The latter gave no opinion, having been concerned, nor did the other judges, as they had not heard the motion.