Malone v. Saints Peter & Paul's Church

The question certified to this court by the Appellate Division is as follows: “ Has the court in a suit upon a common-law cause of action, brought by an administrator, jurisdiction to order a reference of all the issues in the action to a referee to hear and determine the same when the administrator opposes the granting of such order and demands a trial by jury ? ” The court in this case ordered a reference upon the ground that the trial would involve the examination of a long account. Did the court have jurisdiction to make such an order ?

In order to answer the question certified, it becomes important to examine the legislation upon the subject. The first law to which attention has been drawn is entitled “ An act for the better determination of personal actions depending upon accounts.” It was passed December 31st, 1768, and, so far as is material to the question under consideration, provides as follows:

“ Whereas, instead of the ancient Action of Account, Suits are of late, for the sake of holding to Bail, and to avoid the Wager of Law, frequently brought in Assumpsit, whereby the Business of unraveling long and intricate Accounts most proper for the deliberate Examination of Auditors, is now

“ Be it therefore Enacted by his Excellency the Governor, the Council, and the General Assembly, and it is hereby enacted by the Authority of the same, that whenever it shall appear probable in any Cause depending in the Supreme Court of Judicature of this Colony (other than such as shall be brought by or against Executors or Administrators) that the trial of the same will require the Examination of a Long Account, either on one side or the other, the said Court is hereby authorized with or without the Consent of Parties, to refer such Cause by Pule to be made at Discretion to Pef■erees.” (4 Colonial Laws, page 1040.)

This act by its own provision was to continue in force until the first day of January, 1771, and no longer. It was, however, revived by the general assembly in February, 1771, and continued in force until the first day of February, 1780. (Laws of N. Y. [Van Schaack ed.] vol. 2, 1691 to 1773, p. 607.) From 1780 to 1788 I do not find that any statute was in force upon the subject; but in that year the legislature, by chapter 46, section 2, provided: “ That whenever it shall appear probable in any cause depending in ■any court of record in this state, as well where an executor or executors, administrator or administrators, is, arc or may ~be party or parties, as otherwise that the trial of the same will require the examination of a long account, either on ■one side or the other, the said court at any time after issue is joined in such cause, is hereby authorized with or without the consent of the parties to refer such cause by rule to be made

The Constitution of 1777 provided that “ Trial by jury, in all cases in which it hath heretofore been used in the colony of Hew York, shall be established and remain inviolate forever.” (Article 41.) In the Constitution of 1821 the provision was changed so as to read as follows: “ The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever.” And in this form it was continued in the Constitutions of 1846 and 1894. It is now contended that the act of 1788 authorizing a reference in actions by or against executors or administrators was violative of the Constitution of 1777, for the reason that it deprived the parties of the right of a trial by jury, and that by reason thereof all of the subsequent revisions of that act have been unconstitutional and, therefore, void. This proposition, if sound, is far reaching in its consequences. If one party is entitled to a trial by jury, the same privilege must be accorded to the other party in an action, in order that equality before the law may be maintained. (Const, of U. S. art. 14, § 1.) If either party may object to a reference, it follows that no reference can ’

It is a matter of common knowledge that reference, in actions of the character of that now before us, has been ordered in a great many cases as far back as the memory of any man now living extends, and I think we may assume that such references have been ordered ever since the passage of the act of 1788. No decision has ever been made adjudging the provisions of that act to be in conflict with the provisions of the Constitution, but, on the contrary, it has been acted under ever since upon the assumption that it was constitutional. The Constitution of 1777 provided that a trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever. What is the meaning of the word “ used ? ” Does it have reference to a statute existing upon the subject, or to a custom long in use ? The unwritten common law of England was largely made up of customs which had existed for a period “ whereof the memory of man runneth not to the contrary.” This law was in force in the colony. There was no statute specifying the cases in which parties were entitled'to a trial by jury, and the word “ used,” therefore, must of necessity have referred to the customs then existing. What was the custom at that time? It is said that it was to try actions by or against executors or administrators involving the examination of long accounts before a jury. I do not understand such to be the fact.

The settlement of the estates of deceased persons from very early times has devolved upon other than common-law courts. Our Surrogate’s Court dates back to the act of March 16th, 1778. Before the Devolution, the powers and duties of the surrogate-vested in the colonial governor who, by virtue of his office, was judge of the Prerogative Court, or the Court of Probates, as it was sometimes called. When the government of this province' was committed to Governor Nicolls, by the Duke of York, there was framed 6what was afterwards known as “ The Duke’s Laws.” Under these laws the province was divided into three ridings, in each of which

In 1743 an act was passed, under which persons entitled to a share in the estate of deceased persons were authorized to bring actions against executors and administrators to compel the payment due them of their shares of the estate, and if a plea of want of assets was entered, the court was empowered to appoint auditors to examine the accounts of the executors or administrators and to determine the amounts remaining in their hands. This law continued in force down to the adoption of the Eevised Statutes. (Laws of fST. "Y., Smith and

Disputed claims presented against the estates of deceased ¡lersons were ordinarily determined by arbitrators, and this practice, I presume, suggested to the revisers our modern statute providing for an offer of reference of such claims before action brought. But these claims and those made by executors and administrators against other persons, as well as actions by or. against guardians, were determinable in the courts, and where .they involved the adjusting of long accounts by an action for an accounting.

■ One of the most ancient forms of action at common law was the action of account. Formerly it lay only in cases where there was either a privity in deed as agaipst a bailiff or receiver, or a privity in law as against a guardian in socage, and so strictly was the privity of contract construed that an action did not lie by or against executors or admininistrators,_ but by act of Parliament it was first extended to the executors of a merchant (13 Edw. Ill, ch. 23), then to executors of executors (25 Edw. Ill, ch. 5), and then to administrators (31 Edw. III. ch. 11), and finally by 4 Anne, ch. 16, it was extended to executors and administrators, and by.the same statute arbitrators were given the power to administer oaths to the witnesses. Subsequently this form of action fell into almost total disuse in England, chiefly for the reason that the Court of Chancery assumed jurisdiction in matters of account, and it was found that that court furnished to parties a more effectual and speedy remedy, and, consequently, it was more frequently resorted to in such cases, but in this country the action for an account, with some modifications, has continued in use until the present time and actions

It is thus apparent that the practice of determining accounts in this class of cases by auditors was in existence long before the adoption of the Constitution of 1777; and it is quite possible that this explains the reason for excepting executors and administrators from the provisions of the act of 1768, it not then being thought wise to dispense with the auditors. In 1788, however, executors and administrators were placed upon the same footing as other suitors and the reference to referees, instead of auditors, was authorized. This statute did not, therefore, deprive parties of the right to a trial by jury in cases in which the trial by jury had theretofore been used.

A compulsory reference should not be ordered unless it clearly appears that the trial will necessarily involve the examination and auditing of a long account. If it does so appear

The question as to whether the trial of this case will necessarily involve the examination and auditing of a long account, or as to whether independent issues are raised by the pleadings, have not been certified to us. The question, as certified, cannot be answered correctly either in the negative or affirmative, for the reason that issues may be raised in a pleading which are independent of those involving the examination of a long account.

Under the provisions of the Code we are limited in our review to the questions certified, and without deciding the questions not certified we cannot determine whether the order should be affirmed or reversed. Under the circumstances, therefore, the appeal should be- dismissed, the costs to abide the final result of the action.

(dissenting). This action was brought to recover the sum of $994.50, being the unpaid portion of the annual salary of the plaintiff’s intestate as priest of the defendant, a religious corporation, as well as upon an account for moneys lent, paid out and expended. The answer, after putting at issue substantially all the allegations of the complaint, sets forth a counterclaim for moneys had and received. Upon defendant’s motion an order was made at Special Term referring all the issues to a referee to hear and determine the same, upon the ground that a long account was involved. The plaintiff, as administrator, opposed the motion for a reference,

In order to thoroughly understand the nature and extent of this question it is necessary to read it in connection with the pleadings. (Baxter v. McDonnell, 154 N. Y. 432 .) When thus read the question means, can such issues as are joined by the pleadings in this action be referred when the plaintiff, a sole administrator, opposes the application and demands a trial by jury? If the liability of the defendant was established or conceded and the only issue was the amount of the recovery, a question would be presented that I shall not discuss, because it is not before us. The issues referred by the order of the Special Term involved the liability of the defendant to the plaintiff for the unpaid salary as well as upon an account and also the liability of the plaintiff to the defendant upon the cause of action alleged in the counterclaim.

The present Constitution of this state provides that “ The trial by jury, in all cases in which it has been heretofore used shall remain inviolate forever.” (Art. I, § 2.) The provision in the Constitution of 1846 was precisely the same. The language of the Constitution of 1777 was as follows: “ Trial by jury, in all cases in which it hath heretofore been used in the colony of Hew York, shall be established and remain inviolate ■ forever.” (Art. 41.)

At the time our first Constitution was adopted, the following statute was in force, it having been first enacted in 1768

“ Be it Therefore Enacted, etc., that whenever it shall appear probable in any Cause depending in the Supreme Court of Judicature of this Colony {other thwn such as shall be brought by or against Executors or Administrators) that the trial of the same will require the Examination of a Long Account, either on one side or the other, the said Court is hereby authorized with or without the Consent of Parties, to refer such Cause by Buie to be made at Discretion, to Beferees, "" "x" .” (2 Van Schaack’s Laws of Bew York, ch. 1363 ; Id. ch. 1478 ; 4 Colonial Laws, p. 1040 ; 5 id. 195.) In 1772 this statute was extended to all the common-law courts of the colony, and in 1788 it was revived by the legislature of the state, but the exception as to executors and administrators was omitted, and it was expressly enacted that the act should apply to such parties, eo nomine. (5 Colonial Laws, p. 293, L. 1788, ch. 46.)

According to section 1013 of the Code of Civil Procedure, the right to refer an action involving the examination of a long account is general and there is no exception as to executors or administrators. The Be vised Statutes contained

It is argued in behalf of the appellant that the word “ cases,” as used in the section of the Constitution relating to trials by jury, means classes of cases and not particular instances; that being used in a’generic and not in a specific sense, it relates to the nature of the case, not to its incidents, and hence whenever the nature of an action is such that it cannot well be tried before a jury, the legislature has power to authorize the courts to refer.

This is an enticing argument, which, if adopted by us, would lead to a result not only convenient in this and similar cases but in accord with the practical construction of the legislature for a long period of years. I find great difficulty, however, in yielding to it. The first Constitution established trial by jury “in all cases in which it hath heretofore been used in the colony of New York,” and as it had always been used in actions at law when an executor or administrator was a party, with one unimportant exception, the intention of the framers to continue that rule seems clear and conclusive. In the colony, as we have held, there was no authority to refer actions at law except the ancient and virtually obsolete action of account, to be noticed hereafter, unless as authorized by the act of 1768. (Steak v. Colorado F. & I. Co., 142 N. Y. 236 .) As early as 1683 it was provided by the Charter of Liberties and Privileges granted by the Duke of York to the inhabitants of New York “ that all trials shall be by the verdict of twelve men.” (Charter, Appendix No. 2, 2 Laws of 1813; 1 Colonial Laws, p. 111.) We further held in the Steak case that the act of 1768 was virtually a part of - the Constitution of 1777, so far as the power to refer actions at law is concerned. This is apparent not only from the prevailing opinion, but is emphasized by the following quotation from the

When the Constitution of 1777 was framed, as the history of that period shows, the right-of trial by jury was regarded as of supreme importance, and the framers provided that, as theretofore used, it should remain inviolate forever. -The only measure of usage was the universal rule that all actions at law should be tried before a jury, except the antiquated and worn-out action of account, even then seldom resorted to, and the act of 1768. That act contained the only relaxation of the general rule, and it expressly excepted from its operation the representatives of dead men who could not j>rotect themselves. The language of the Constitution shows an unmistakable intention to establish in the state the rule previously existing in the colony, and that rule did not permit the reference of such actions. Unless the act of 1768 was virtually embodied in the Constitution, as we held in the Steak, case, there was no authority to refer any action at law whatever, except that “ most difficult, dilatory and expensive action,” known as the technical action of account, which could be brought only against bailiffs, receivers and guardians in socage and at last' against merchants. Judge Bronson, writing sixty years ago, said that only two actions of that

The order appealed from should be affirmed, with costs, and the question certified answered in the negative.

Parker, Oh. J., Gray, Cullen and Werner, JJ., concur with Haight, J.; O’Brien, J., concurs with Vann, J.

Appeal dismissed.