Majority
p. 168Edwin R. Ives, et al. vs. Robert J. Vandewater, et. al.
Headnote
A motion for reference will be denied, where it clearly appears that substantial questions of law will arise on the trial, although plaintiffs show it will require the examination of a long account on their part.Motion by plaintiffs to refer this cause.—Plaintiffs stated that this was an action of assumpsit, and the trial would require the examination of a long account on the part of the plaintiffs. The defendants stated that the action was founded on certain articles of agreement, entered into in writing by an association of forwarders on the Erie canal, called “ The Canal Association,” and the whole ground of the defence interposed was, the illegality of the said association, and specified.
1. That the said association and the articles thereof, were contrary to the provisions of the 2 R. S. 691, § 8.
2. That the same was a conspiracy for purposes injurious to trade and commerce and was a misdemeanor by statute.
3. That no action can be sustained upon said articles of association, they being illegal and void.
They also stated that two causes involving the same questions were
p. 169
tried at the last circuit court in and for the county of Albany, and the plaintiffs in each case were non-suited upon said grounds.
J. Newland, Plffs Counsel. Dean & Newland, Plffs Attys.
H. Harris, Defts Counsel. Harris & Shepard, Defts Attys.
Was clearly of opinion this was not a proper case for reference; that it ought to be tried at the circuit. Defendants’ papers show, and it is obvious from the nature of the defence that substantial questions of law will arise on the trial. The motion must be denied.
Decision.— Motion denied with costs.