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Gayard v. Texas Crude Oil & Mining Co.

103 N.Y.S. 437 Court N.Y. App. Div. Decision date 1907-03-22 English

Delivered by McLAUGHLIN, J.

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p. 437
(118 App. Div. 299)
GAYARD et al. v. TEXAS CRUDE OIL & MINING CO. et al.
(Supreme Court, Appellate Division, First Department.
March 22, 1907.)

Headnote

Specific Performance—Proceedings—Reference.
In an action for specific performance of a contract and an accounting, where the existence of the contract is in issue, it is error to send the case to a referee; Code Civ. Proc. § 1013, providing for compulsory reference in eases requiring examination of a long account, not applying to such cases, and the plaintiffs being entitled to have their right to an accounting determined by reference to take an account.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 400.]
Appeal from Special Term.
Action by Julius Gayard and others against the Texas Crude Oil &.Mining Company and others. Order for compulsory reference,' and plaintiffs appeal. Reversed.
Argued before PATTERSON, P. J., and McLAUGHLIN, IN-GRAHAM, CLARKE, and HOUGHTON, JJ.
Walter Garrell Low, for appellants.

This action was brought for the specific performance of an alleged agreement and for an accounting. The answers of the different defendants put in issue the existence of the agreement and the right of the plaintiffs to the relief claimed. After issue had been joined, an order was made referring the matter to a referee to hear and determine, and the plaintiffs appeal therefrom.

The appeal is well taken. The action is in equity, and the right to an accounting depends upon the existence of the alleged agreement; and, this having been denied in the answers of the different defendants, it was the issue to be tried. This issue does not require the examination of a long account, or bring the case within the provisions of the,Code (section 1013) which authorize a compulsory reference. The plaintiffs are entitled to have the question of their right to an accounting determined by a trial at Special Term, before a reference can be ordered to take an account. Jones v. Lester, 77 App. Div. 174 , 78 N. Y. Supp. 1000 ; Leary v. Albany Brewing Co., 66 App. Div. 407 , 72 N. Y. Supp. 657 ; Knox v. Gleason, 63 App. Div. 99 , 71 N. Y. Supp. 213 ; Hilton v. Hughes, 5 App. Div. 226 , 39 N. Y. Supp. 204 ; Averill. v. Emerson, 74 Hun, 157 , 26 N. Y. Supp. 650 . If it be there determined that the right' to an accounting exists, then a reference may be ordered.

p. 438
The order appealed from, therefore, must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs. All concur.

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