McQuade v. Cooper — 35 N.Y. St. Rep. 937

Majority

p. 937

Matthew McQuade, App’lt, v. James Cooper, Resp’t.

(Supreme Court, General Term, First Department,

Filed December 29, 1890.)

Headnote

Reference.

While the court may have power to refer an action brought on a building contract and for extra work, where such extra work is denied and breach of contract set up in defense, the question whether such power should be exercised depends on the peculiar features of the case, and where it appears th it there will be no difficulty in the jury being able to carry in mind the evidence relating to the items involved the application for a reference should be denied.

Appeal from order denying motion for reference.

G. F. Langbein, for app’lt; J. M. Tierney, for resp’t.

This action was brought to recover a balance alleged to be due upon a contract to do certain carpenter work upon the house of the defendant, and also the usual claim under such circumstances for extra work and materials in or about the buildings, and an additional claim for extra plans furnished for the buildings.

The answer of the defendant alleges a specific contract as to the plans, and denies the extra work, except as to two items, claiming that it was embraced within the contract, and alleges certain respects in which the contract had not been complied with.

Upon this state of the pleadings the plaintiff moved for a reference, which was denied, and from the order thereupon entered this appeal is taken.

We see no reason for interfering with the order made by the court below. It may be true that the court may have the power to refer an action of the nature presented by the pleadings herein. But whether it should exercise that power is another question; and the propriety of such exercise must always depend upon the peculiar features of each action in which the application for a reference is made. The policy of the court is not to refer cases un

p. 938

less it is apparent that they cannot with propriety and with justice to the parties be tried before a jury because of complication of accounts or figures which the jury cannot conveniently carry in their minds. But in the case at bar it does not seem that there would be any difficulty in the jury being able to carry in mind" the evidence relating to the few items involved and come to an intelligent determination upon the evidence.

The question in regard to some of the items of extra work must .be determined upon an inspection of the contract. This applies to almost all claims for extra work. And the claim of the defendant in respect to the parts of the contract which have not been complied with are not so intricate or numerous that it would be impossible for the jury to bear in mind the evidence relating to each.

We think, therefore, that there was no adequate reason for a reference in this case, and that the order appealed from should be affirmed, with ten dollars costs and disbursements.

Bartlett, J., concurs.