C. B. Keogh Mfg. Co. v. Molten — 40 N.Y. St. Rep. 688

Majority

p. 688

The C. B. Keogh Mfg. Co., Resp’t, v. Charles Molten et al., Impl’d, App’lts.

(Supreme Court, General Term, First Department,

Filed October 16, 1891.)

Headnote

Refebence—Lone account.

It is not sufficient to justify a compulsory reference that the case may possibly involve the examination of a long account. There must be enough alleged or shown to justify an inference that that will be the course of the .trial.

Appeal from order directing reference.

Chas. M. Earle, for app’lts; M. A. Vosburgh, for resp’t

We do not see how the order in this case can be sustained. In the case of Thayer v. McNaughton, 117 N. Y., 111 ; 26 N. Y. State Rep., 843, it is distinctly held that a compulsory reference can only be ordered where the trial will require the examination of a long account and will not require the decision of difficult questions of law, and that these facts must be shown to justify the court in ordering a reference against the consent of the other party.

In the case cited there was no evidence before the court when the order of reference was made that the statutory conditions existed upon which the compulsory reference could be ordered, and so with the case at bar. There is an allegation in the answer of

p. 689

•one of the defendants that he furnished .work, labor and materials amounting to a certain sum which he claimed to be a lien upon the premises in question superior to the mortgage, and he asked for a foreclosure of this lien and a sale of the premises to pay the amount due to him. How many items or how long an account this claim consisted of is nowhere stated.

It is true that in one of the affidavits upon which the order of reference was granted the statement is made that the trial of the issues will require the examination of a long account on the side of the plaintiff consisting of several items of charges, but how many items of charges or how long an account is nowhere stated, and, as was the case of Thayer v. McNaughton, it is quite consistent with what appears upon the face of these papers that the debts and payments may be few in number.

It is not sufficient to justify a compulsory reference that the case may possibly involve the examination of a long account There must be enough alleged or shown to justify an inference that that will be the course of the trial. The power of the court being limited, the conditions upon which such power can be exercised must be established. This was not done in the case at bar and the order was therefore unauthorized.

The order should be reversed, with ten dollars costs and disbursements, with liberty upon payment of costs and disbursements of appeal to renew- motion for reference upon proof of length of accounts and that no other substantial issues are involved.

Daniels, J., concurs.