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Van Rensselaer v. Jewett

6 Hill & Den. 373 Court N.Y. Sup. Ct. English

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p. 373
Van Rensselaer and others vs. Jewett.

Headnote

A cause is not referable unless the trial of it will require the examination of an account, in the ordinary acceptation of the term, though many items of damage be involved.
In covenant on a lease reserving an annual rent payable in grain, fowls &c., the declaration claimed the rent for nine years, and the defence set up did not go to the items of the plaintiff’s claim, but denied that the defendant was ever liable: Held, that the cause was not referable.
Otherwise, if there had been payments in money or other things, and the question was whether any part or how much of the rent remained in arrear. Semble.
Where a circuit judge has ordered a reference, this court may review his decision and revoke the order.
Covenant against the defendant as the assignee of a lease made by the testator, to recover nine years rent. The annual
p. 374
rent reserved by the lease was 18| bushels of wheat, four fat hens, and one day’s service with carriage and horses. The defence did not go to the items of the plaintiff^ claim, but denied the defendant’s liability altogether. A motion was made at the circuit, in behalf of the plaintiffs, for a reference, on an affidavit that the trial of the cause would “ require the examination of a long account, to wit,” &c., stating the ground of action as above. The circuit judge ordered a reference; and he made a like order in three similar cases between the same parties, two of which were for four years’ rent, and the other for one year’s rent.
R. W. Peckham, for the defendant,
moved to vacate the orders of reference made by the circuit judge in the four suits. He cited Thomas v. Reab, ( 6 Wend. 503 ;) and Levy v. Brooklyn Ins. Co. ( 25 Wend. 687 .)
D. Cady, for the plaintiff,
cited 2 R. S. 384, § 41.

Where there is no account between the parties, in the ordinary acceptation of that term, the cause cannot be referred, although there may be many items of damage. (Thomas v. Reab, 6 Wend. 503 ; Silmser v. Redfield, 19 id. 21; Dederick v. Richley, id. 108.) If there had been payments in money or other things, and the question was whether any part or how much of the rent was in arrear, there might, perhaps, be a reference. But here the defendants claim nothing in the way of payment; but rest their defence on the ground that they were never liable for the rent which the plaintiffs claim. The cases do not come within the statute.

Although the circuit judge may order a reference with the like effect as if the order was made by this court, it is settled that we may review his decision, and revoke the order. ( 6 Wend. 503 ; 25 id. 687.) We could review the' decision if it had been made by ourselves.

Motions granted.

Cases cited