Degener v. Underwood — 28 N.Y. St. Rep. 583

Majority

p. 583

Frederick L. Degener, Resp’t, v. John T. Underwood et al., App’lts.

(New York Superior Court, General Term,

Filed November 22, 1889.)

Headnote

1. Reference—When proper.

Where it is satisfactorily established that the trial will involve the examination of a long account, that there are no difficult questions of law to be decided and that an “ account ” between the parties is directly involved, a compulsory reference is proper.

8. Same.

Neither amendment of the answer nor the incorporation of a counterclaim therein is a ground for vacating the order of reference.

Appeal from order of reference and from order denying defendant’s motion to vacate the same.

James A. Hudson, for app’lts ; J. H. Ludden, for resp’t

The moving papers upon which the order of reference was granted, and which included the pleadings, satisfae

p. 584

torily established that the trial of the issues would require the examination of a long account, containing 714 items, on the part ■of the plaintiff; that it would not require the decision of any difficult questions of law; and that an “ account ” between the parties, in the proper acceptation of the term, was directly involved.

It was no answer to the motion to say that the defendants intended to amend their answer. Enos v. Thomas, 4 How. Pr., 290 . The foundation of the practice in the courts rests upon acts, and not upon mere intentions. The case, as it appeared upon the moving papers, was clearly referable, and consequently no error was committed in granting the order of reference. The amended answer, which was subsequently served, in no way lessened the necessity of a reference. The incorporation of a counterclaim rather increased the necessity. On the motion to vacate the order of reference, on the ground that the issues had been changed by an amendment to the answer, the burden of proof was on the defendants to establish that the answer, as amended, rendered a reference unnecessary. This they wholly failed to establish. .The case presents only questions of practice, and not of jurisdiction, and upon all the facts we cannot say that the several judges who made the orders appealed from abused the discretion vested in them.

The orders appealed from should be severally affirmed, with costs and disbursements.

Freedman and Ingraham, JJ., concur.