Cochran v. Thurber — 21 N.Y. St. Rep. 37

Majority

p. 37

S. Skiddy Cochran and another, Resp’ts, v. Jeannette M. Thurber et al., App’lts.

(Supreme Court, General Term, First Department,

Filed January 28, 1889.)

Headnote

Practice—Reference—When proper.

An action cannot be referred until it is at issue as to all of the defendants.

p. 38

Appeal from order of reference.

W. H. Andrews, for the app’lts, Godwin ; L. O. Van Doren, for app’lts, Thurber ; H. G. Hotchkiss, for resp’ts.

In the disposition of this appeal, it is not necessary to determine whether, under any circumstances, this action is referrable. It certainly cannot be referred in its present condition. It appears that there are defendants whose time to answer had not expired and whose answers had not been served.

It is a familiar rule that an action cannot be referred until it is at issue as to all of the defendants. That this must be the case seems to be apparent from the fact that it can-, not be determined as to whether difficult questions of law will arise upon the trial of the case until the issues are presented upon the pleadings. And it seems also apparent that each defendant has the right to have his pleadings considered as well as those of his co-defendants in determining this, in many instances, important question.

Although it may be important to expedite the hearing of this case, yet such haste should not be indulged in as would violate the plain rules governing the disposition of motions of this description.

An issue cannot be referred until it is presented, and such a reference seems to be attempted by the order in question.

_ Thé order should be reversed, with ten dollars costs and disbursements.

Macomber and Brady, JJ., concur.