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Avery v. Sand

41 N.Y.S. 53 Court N.Y. App. Div. Decision date 1896-09-29 English

Delivered by HERRICK, J.

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p. 53
AVERY et al. v. SAND.
(Supreme Court, Appellate Division, Third Department.
September 29, 1896.)

Headnote

Compulsory Reference—When Granted.
Merely because a case is triable by the court without a jury does not authorize a compulsory reference under Code Civ. Proc. § 1013, which provides that “the court may, of its own motion * * * 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 decisions of difficult questions of law. In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section.”
Appeal from circuit court, Albany county.
Action by William L. Avery and others against John H. Sand to-set aside a deed and for other relief. A compulsory reference was-granted, and plaintiffs appeal. Reversed.
Argued before PARKER, P. J., and HERRICK, MERWIN, and PUTNAM, JJ.
Montignani, Mallory & Elmendorf (George H. Mallory, of counsel),, for appellants.
The case was not one permitting a compulsory reference, because it will require the decision of difficult questions of law. Rochester v. Mayor, etc., 9 Civ. Proc. R. 226; Magown v. Sinclair, 5 Daly, 63 ; Draper v. Day, 11 How. PraC. 439; Bushnell v. Eastman, 2 Abb. Prac. (N. S.) 411; Goodyear v. Brooks, 4 Rob. (N. Y.) 682; Quinn v. McDonald (Sup.) 10 N. Y. Supp. 855 ;. Wheeler v. Falconer, 7 Rob. (N. Y.) 45; McLean v. Insurance Co., 8 Bosw. 700 .
J. H. Clute, for respondent.
(1) The action was one of equity, and therefore one which the court could try without a jury. Cates v. Allen, 149 U. S. 451 , 13 Sup. Ct. 883 , 977; Cattle-co. v. Mann, 130 U. S. 69 , 9 Sup. Ct. 458 ; Shepard v. Railroad Co., 131 N. Y. 215 , 30 N. E. 187 ; Lynch v. Railroad Co., 129 N. Y. 274 , 29 N. E. 315 ; Randall v. Randall, 114 N. Y. 499 , 21 N. E. 1020 . (2) If the action was one triable by the court without a jury, a reference could be directed as prescribed im section 1013 of the Code of Civil Procedure.

This is an appeal from an order of reference made-at the circuit upon the motion of the court, and against the objection of the plaintiff, referring all the issues in the action to a referee* to hear and determine. The action is one in equity. Whatever opinion I might have if this was an original question arising under section 1013 1 of the Code, I feel constrained by the decisions in the cases of Barnes v. West, 16 Hun, 68 , and Thayer v. McNaughton, 117 N. Y. 111 , 22 N. E. 562 , to hold that the court had no right upon its motion to make the order appealed from.

The order of reference should therefore be reversed, with $10 costs-, and disbursements of this appeal. All concur.

i Code Civ. Proc. § 1013, is as follows: “The court may, of its own motion,, or upon the application of either party, without the 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 decisions of difficult questions of law. In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section, to decide the-whole issue, or any of the issues; or to report the referee’s finding, upon one or more specific questions of fact, involved in the issue.”

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