Majority
p. 117Jacob F. Bamberger et al., Resp’ts, v. The Fire Association of New York, App’lt. Jacob F. Bamberger et al., Resp’ts, v. The Mutual Fire Ins. Co., App’lt. Jacob F. Bamberger et al., Resp’ts, v. The Armstrong Fire Ins. Co., App’lt. (New York Superior Court, General Term Filed June 27, 1890.)
Headnote
Reference — Should not be granted where fraud is involved.If, upon examination oí all the papers, it appears that a charge of serious fraud is involved in the issues, the court, in its discretion, may well deny a motion for a reference even if the action be referable, and the appellate court will not interfere with such excercise of its discretion. So held, where the charge of fraud was set up in the answer.
Appeals from orders denying defendant’s motions for a reference.
Stine & Caiman, for app’lts; Hoadly, Lauterbach & Johnson, for ■esp’ts.
These three actions have been brought to recover noneys due on account of three policies cf insurance covering fiaintiffs’ stock of merchandise at their store in Louisville, Ky. These policies form a part of a total number of 144 policies upon
p. 118
the whole stock of said merchandise. In each of these actions the defendant has set up a charge of fraud on the part of the insured. For this reason the motion made by each defendant for a compulsory reference was properly denied. True, the, character of the action is to be determined from the complaint. But, in exercising its discretion upon the question whether a reference shall or shall not be compelled, the court will look at the papers submitted by both sides, and, if it should appear that a charge of serious fraud is involved in the issues, the motion may well be denied, even if the action be referable. With the exercise of that discretion the general term will not interfere. The vieyvs already expressed render it unnecessary to determine the question of power.
In each case the order appealed from should be affirmed, but there should be only one bill of costs.
Ingraham, J., concurs.