Majority
p. 815NORTHROP v. BUTLER et al. (Supreme Court, Appellate Division, First Department May 29, 1908.) Argued before INGRAHAM, McLAUGHLIN, CLARKE, HOUGHTON, and SCOTT, J.
Headnote
Refebenoe— Grounds of Refebenoe.Where it does not appear that the issues involved cannot be properly disposed of by a jury, the action should not be tried by a referee, but defendant should have the right to a jury trial of the issues of fact.
[Ed. Note.—For cases in point see Cent. Dig. vol. 42, Reference, §§ 3ib-43.]
Scott, J., dissenting.
Appeal from Special Term.
Action by Charles P. Northrop against Jacob D. Butler and others. From an order of reference, defendants appeal.
Order reversed, and motion denied, without prejudice to further action.
Alton B. Parker, for appellants.
M. W. Ehrich, for respondent.
Upon the papers presented we do not think that it satisfactorily appears that the substituted issues involved in this action cannot be properly disposed of by a jury. Where such fact does not appear, we do not think that an action of this character should be tried by a referee, but that the defendant should have the right to a jury trial of the issues of fact.
The order should therefore be reversed, with $10 costs and disbursements, and the motion denied, without prejudice to such action by the trial judge upon the trial as should be proper, if it shall then develop that such a large number of items are in dispute as to make a trial by jury impracticable.
SCOTT, J., dissents.