Keeler v. Poughkeepsie & Salt Point Plank Road Co.

Majority

p. 11

SUPREME COURT.

Lewis S. Keeler agt. The Poughkeepsie and Salt Point Plank Road Company.

Headnote

The court must be enabled to see from the pleadings, and other papers of the parties, that the trial of the cause must necessarily involve the examination of a long account on either side before they will compel a reference.

Dutchess Circuit,

Sept. 1854.

The plaintiff was the contractor to build the plank road of the defendants. He claims that the company violated the contract, so that he is entitled to recover of them on the quantum meruit. The defendants deny the violation of the contract, set up payment, and that the contract, soon after it was entered into, was assigned to the plaintiff, and that the assignee has been paid. The case has been noticed for trial at the present circuit, and defendants now move to refer it, because the trial will involve the examination of a long account.

C. Swan, for plaintiff.

John Thompson, for defendants.

I think the motion must be denied, for two reasons. If the defendants’ answer is true, the trial will not involve the examination of any account; and defendant at least must be held bound by his own allegations.

But even if the plaintiff’s view of the case is correct, before it can be established, that issue is to be tried, and then, if decided in the plaintiff’s favor, it may be necessary to examine the accounts of the parties. If that issue is found for the defendants, then no accounts are to be examined. A reference can only be compelled where the court can see by the pleadings, or other papers of the parties, that the trial of the cause must necessarily involve the examination of a long account on either side. The cause must, therefore, retain its place on the calendar, unless the parties can agree to a reference.