Shepard v. Eddy — 18 N.Y. St. Rep. 839

Majority

p. 839

Charles F. Shepard, Resp’t, v. George P. Eddy, Committee, etc., App’lt.

(Supreme Court, General Term, Fifth Department,

Filed October 19, 1888.)

Headnote

1. Reference—When court mat order—Code Crv. Pro., § 1013.

The court may direct a trial of 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.

2. Same—Mental incapacity of party does not vary rule.

This rule is not varied by the fact that the original defendant to the action is incapable of intelligently understanding her rights and is represented by a committee.

Appeal from order of Erie special term referring the • issues for trial and determination to a referee.

Joel Walker, for app’lt; J. L. Romer, for resp’t.

The action was brought against Emeline A. Scovell, and by the complaint the plaintiff alleged that prior to March 25, 18G4, he was employed by her to take charge of her divers parcels of real estate situate in city of Buffalo,to attend to renting and improvement of such lands, and to collect the rents and see that the buildings on them were kept in repair and insured, to pay the taxes and generally to take charge and management of the property, and make sales of the lands.

That he did this and in doing so rendered service, expended and advanced moneys in that behalf until in 1885, which with interest on yearly balances to May 1, 1885, amounted to $56,511.21, that there has been paid and applied on his claim by moneys collected and received by him $50,569.19, and he demands judgment for the balance and interest.

The defendant by her answer admitted that she owned certain lands in the city, and denied upon information and belief the other allegations of the complaint. Upon the plaintiff’s motion for a reference the affidavit in support of the motion stated that, “the plaintiff’s accounts of his receipts and disbursements in said business are made up of upwards of a hundred separate and distinct items, each one of which will be the subject of investigation upon the trial.”

p. 840

This is not controverted by the affidavit in opposition to the motion, but it is there stated that the defendant is over seventy years of age, that she has a good defense on the merits, that she has been adjudged a person of unsound mind, and that George Eddy had been appointed a committee of her person and property. The court made an order referring the action, and by it also substituted such committee as defendant. The case seems by the affidavit on the part of the plaintiff to be brought within the statute which provides that the court may 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 inquire the decision of difficult questions of law. Code Civ. Pro. §. 1013. And such has been the practice in this state authorized by statute for seventy-five years. It is not alleged by affidavit or claimed on the part of the defendant that the trial will require the decision of any difficult question of law, but reference is made by counsel to the constitutional right of trial by jury. This is guaranteed so far as it existed at the time of the adoption of the Constitution of 1846, Art. 1, § 2. But as applied to actions the trial of which requires the examination of a long account, the right is still as it was then so qualified that the court may direct a trial by referee. Van Marter v. Hotchkiss, 4 Abb., Ct. App. Dec., 484 ; S. C., 1, Keyes 585.

The counsel suggests in his brief the impropriety of referring the claims of one officer of the court to another having a like relation to it. It may be inferred that he intended to be understood that the plaintiff is a lawyer although nothing appears to that effect in the papers upon which the appeal is heard. The business out of which the alleged claims of the plaintiff arose did not necessarily require the service of a member of the legal profession.

The nature of the claim and the numerous items of the account involved and which it seems will require consideration, renders the case a proper one for reference, as the trial will require much care and patience. And the numerous items would seem to render a trial before a jury quite impracticable. The fact that the original defendant is incapable of intelligently understanding her rights and is represented by a committee, is not apparently any reason why an attempt should be made to try the issues before a jury, but on the contrary that situation would seem to require opportunity for investigation on the part of the defense and the care and deliberation which could be had and given only upon the trial before a referee.

Upon the facts as presented by the papers no occasion appears for interference with the action of the special term.

p. 841

The order should be affirmed.

Barker, P. J.; Haight and Dwight, JJ., concur.