Wamsley v. H. L. Horton & Co. — 23 N.Y.S. 85

Majority

p. 85

(68 Hun, 549.)

WAMSLEY v. H. L. HORTON & CO., Limited.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

1. Reference—Facts Arising on Motion.

A reference under Code Civil Proc. § 1015, in respect to disputed questions of fact arising on motions, should be ordered only in extraordinary cases, and, if possible, the court should dispose of the matter on the motion papers, instead of putting the parties to a reference, with the large expenditures of money in the shape of referee’s, stenographer’s, and counsel fees.

2. Summons—Service, on Foreign Corporation—Setting Aside.

A motion to set aside the service of summons on a foreign corporation on the ground that the person served was not an officer should be denied, where the affidavit of such person merely alleges that he was not an officer when the summons was served, but admits that he is the principal stockholder, and that he was the principal officer a few months before such service, without stating the facts which effected the change.

Appeal from special term, New York county.

Action by William E. Wamsley against H. L. Horton & Company, Limited, a foreign corporation, on contract. Defendant moved to set aside service of summons on the ground that the person served was not an officer of the corporation, and, from an order directing a reference to determine disputed questions of fact arising on such motion, defendant appeals.

Reversed.

The following opinion was delivered by BARRETT, J., at special term:

“The defendant, a foreign corporation, moves to set aside the service of the summons herein upon the ground that Mr. Horton is not an officer of the company, but merely a director thereof. In his original affidavit, upon which the application was based, Mr. Horton states that on the 9th day of January, 1893, when the summons was served upon him, he was neither president, treas

p. 86

urer, secretary, cashier, nor managing agent of the defendant.. The plaintiff opposed the application upon an affidavit showing that the defendant has no president, but that the chairman of its board of directors performs functions corresponding to that of president. The affidavit then states that in September last he examined the record" of the formation of this -corporation, which showed that Mr. Horton owned nearly all its stock, and was chairman of its board of directors. To this affidavit Mr. Horton now replies that he was not such chairman when the summons was served upon him. He does not deny that he was chairman in September last, nor that he is the principal owner of the stock of the defendant. He thus, in substance, admits the facts stated in the opposing affidavit, -but seeks to avoid them by the statement that, though he was chairman in September, 1892, he was not chairman on the 9th day of January, 1893. In my judgment, he was called upon to state the facts-which effected the change. It may well be that, in law, he is still chairman, notwithstanding his belief to the contrary. When we know the precise facts with regard tb the alleged change in the situation we will be better able to' judge whether the broad assertion that he was not chairman on the 9th day of January, 1893, is an accurate statement of fact, or an inaccurate conclusion from the actual facts. The plaintiff should not be thrown out of court upon a bald assertion which frank disclosure of the circumstances may prove to be inaccurate. The very fact that counsel protested against any-, further inquiry looking to the examination of Mr. Horton adds to the doubt created by the suspicious reserve of the 'replying affidavit. Upon" the whole, I think such further "inquiry essential to a correct disposition of the motion, and accordingly direct a reference as to the question of fact involved.”

Argued before VAN BRUNT, P. J., and O’BRIEN and INGRAHAM, JJ.

Dos Passos'Bros., (John R. Dtis Passos, of counsel,) for appellant.

Nichols & Bacon, (A. S. Bacon, of counsel,) for respondent.

We concur with the counsel for the appellant that references under section 1015^[1] of the Code, in respect to disputed questions of fact arising upon motions, should only be ordered' in extraordinary cases. In fact, it should only be resorted to when such a reference is absolutely necessary to determine questions of" fact which are of vital importance, arising upon motions before the court. A reference upon a motion is frequently a great abuse of the discretion vested in the court by this section, as it requires-large expenditures of money in the shape of referee’s and stenographers’ fees, and to procure the attendance of counsel, which are utterly disproportionate to the importance of the questions involved either in the action or .upon the motion.. We think,, therefore, that in the case at bar, upon the facts presented, the court should not have ordered the reference from which an .appeal is taken; but we are of opinion, in view of the conclusions* arrived at by the court as evidenced by its opinion, and which were justified by the papers before it, that it should have disposed of the motion by denying the same.- We think, therefore, that the order of

1 Thiss section provides: “The court may likewise, of its own motion, or upon the application of either-party, without the consent of the other, direct a reference to take an account and report to the court thereon, either with or without, the testimony, after interlocutory or final judgment, or where it is necessary to do so, for the information of the court; -and also to determine and report upon a question of fact, arising in any stage of the action, upon a motion or otherwise, except upon the pleadings.”

p. 87

reference should be reversed, and the motion sent back to the special term, in order that it may be disposed of upon the papers which were then before the court, with $10 costs and disbursements of appeal, to abide the final disposition of the motion.