Canavan Bros. v. Automobile Club of America — 106 N.Y.S. 572

Majority

p. 572

CANAVAN BROS. CO. v. AUTOMOBILE CLUB OF AMERICA.

(Supreme Court, Appellate Division, First Department.

November 8, 1907.)

Headnote

Appeal—Review—Disobetion op Court.

Where parties in an action had a right to trial by jury unless it clearly appeared that a jury trial was impracticable, in which case the court had power to refer the issue to a referee, and the court decided that a • jury trial was practicable and denied the motion for reference, its judgment will not be reversed.

p. 573

Appeal from Special Term.

Action by the Canavan Bros. Company against the Automobile Club of America. From an order denying a motion to refer the issues to a referee, plaintiff appeals. Affirmed.

Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, SCOTT, and LAMBERT, JJ.

Franklin Nevins, for appellant.

William W. Niles, for respondent.

While the court had power to refer the issues in this action to referee for trial, the parties had a right to a trial by jury, unless it clearly appeared such a trial was impracticable. As the court at Special Term has decided that such a trial was practicable, and has therefore denied the motion for a reference, we do not think that upon these papers we should reverse that determination. The affirmance of this order, however, is without prejudice to the court at Trial Term, when the case should be brought on for trial, ordering the issues to be tried before a referee, if it should then appear that a trial by a jury was impracticable.

The order appealed from is therefore- affirmed, with $10 costs and disbursements of the appeal to the party in whose favor final judgment is awarded. All concur.