Hyperlawhypertext legal databasebeta Hibbard v. Commercial Alliance Life Insurance 24 N.Y.S. 332

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Hibbard v. Commercial Alliance Life Insurance

24 N.Y.S. 332 Court N.Y. Super. Ct. Decision date 1893-07-03 English

Delivered by GILDERSLEEVE, J.

Contents

Majority

p. 332
(4 Misc. Rep. 422.)
HIBBARD v. COMMERCIAL ALLIANCE LIFE INS. CO.
(Superior Court of New York City, General Term.
July 3, 1893.)

Headnote

1. Compulsory Reference—Difficult Questions of Law.
-Guile Civil Proc. § 1013, provides for a compulsory reference “where the-trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law.” Held that, in order to defeat an application for a reference, where a long account is involved, ■the questions of law expected to arise must be pointed out specifically and in such manner as to enable the court to determine whether they are of any real difficulty.
2.. Same—Long Accounts.
In an action against a life insurance company to recover commissions for procuring insurance under a contract with defendant, a schedule was annexed to the complaint, containing about 90 items, giving the numbers-of the policies procured by plaintiff, names of the insured, the amounts paid, and the commissions alleged to be due to plaintiff thereon. The answer was a general denial as to the existence of the contract, and as to-each and all the amounts claimed by plaintiff in his schedule. Held, that “the examination of a long account” was required, within Code Civil Proc. § 1013, providing for compulsory ■ references.
Appeal from special term.
Action by Charles B. Hibbard against the Commercial Alliance Life Insurance Company. From an order granting a motion for reference, defendant appeals.
Affirmed.
Argued before FREEDMAN and GILDERSLEEVE, JJ.
George Wilcox, for appellant.
Lucius McAdam, for respondent.

This action was begun for the purpose of recovering commissions alleged to be due under a written contract between plaintiff and defendant. The complaint sets up the contract, and refers thereto as to the respective rights of the parties;, and annexed to the complaint is a schedule, or bill of particulars, showing a long account, upon which plaintiff claims commissions-under the contract, and giving the numbers of policies, names of the insured, and amounts paid, and the commissions alleged to be due to plaintiff thereon. The answer of defendant is substantially a general denial as to the existence of the contract and as to each and all of the amounts claimed by plaintiff set forth in his1 schedule- or bill of particulars. Upon plaintiffs application the special term ordered a reference, against the objection of defendant, and from the order granting the motion for a reference the defendant appeals.

The statute (Code, § 1013) provides that “the court may, of its own motion, or upon the application of either party, without the-

p. 333
-consent of the other, direct a trial of the issues of fact by a referee, where the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law,” etc. The questions of law expected to- arise must be pointed out specifically and in such manner as to enable the court to determine whether they are of any real difficulty. Patterson v. Stettauer, 39 N. Y. Super. Ct. R. 413; Millen v. Fogg, (Super. N. Y.) 13 N. Y. Supp. 614 ; Cass v. Cass, (Sup.) 16 N. Y. Supp. 233 ; Salisbury v. Scott, 6 Johns. 329 ; Dewey v. Field, 13 How. Pr. 437 . Ho questions of law are indicated that may be expected to arise upon the trial, and no contention is made on this appeal under the provisions of the statute on this point. Under the general denial in the answer it will be necessary, upon the trial of this action, among other things, to examine each and every policy falling under the contract as to its issuance, and the payments thereon, and the commissions due thereon. This will involve the examination of a long account on the side of the plaintiff, consisting of some ninety-odd items. Clearly, where a plaintiff’s bill of particulars consists of ninety-odd items, each of which is put in issue, and will have to be proved by reference to the books of plaintiff or defendant, a compulsory reference is proper. Canda v. Robbins, (Sup.) 7 N. Y. Supp. 895 . The special term has found, in effect, that the trial of the issues will require the examination of a long account. We think, upon full consideration of all the matters alleged in the pleadings and in the affidavits before the special term, that the finding was warranted, and we are not disposed to interfere with the same. Cass v. Cass, (Sup.) 16 N. Y. Supp. 233 . The papers upon which the order was granted meet with the requirements of the statute. Order appealed from is affirmed, with $10 costs and disbursements.

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