Johnson v. Atlantic Avenue Railroad — 51 N.Y. St. Rep. 188

Majority

p. 188

Tom L. Johnson et al., Resp’ts, v. The Atlantic Avenue Railroad Co., App’lt.

(Supreme Court, General Term, Second Department,

Filed February 13, 1893.)

Headnote

Reference — Breach of contract — Long account.

In an action for breach of contract, whereby the expenditures made by plaintiffs in pursuance thereof were rendered useless and the enterprise abortive, where it appears that such expenditures are represented by one thousand vouchers and items amounting to $40,000 on the other side, an order of reference is proper.

Appeal from order denying defendant’s motion for an order of reference.

Action for breach of contract Defendant leased to plaintiffs certain of its franchises, and the latter covenanted to construct thereunder and operate certain lines of railroad and pay a certain portion of the earnings to defendant. Defendant under this contract was to obtain the necessary consents to the construction and operation of said roads, which it failed to do.

Tracy, Boardman & Platt, for app’lt; James C. Church, for resp’ts.

We think the motion to refer this action to a referee to hear and determine the same should have been granted.

It was stated in the moving papers that the account of the plaintiffs for moneys alleged to have been expended by them in constructing and equipping the cable road described in the complaint herein, contains the different items included in about one thousand vouchers on one side, and items aggregating about $40,000 on the other side, representing the proceeds of sale of property alleged

p. 189

to have been purchased in connection with the construction and equipment of said cable road.

That allegation receives corroboration by the closing charge in the complaint, that to enable the plaintiffs to comply with the terms of the agreement upon which the action is based, it was necessary for them to expend, and they did expend, large sums of money in the purchase of real estate, machinery, cars, horses, the hiring of employes and other expenditures for construction of the railroad, and that by reason of the defendant’s breach of the said agreement as aforesaid, and its failure to obtain the aforesaid consents, the enterprise contemplated by the agreement became abortive, to the damage of the plaintiff in the sum of $300,000.

Whatever the measure of damages may be, it will be necessary to prove those expenditures upon the trial, and the account thereof will be long and better understood by a referee than by a jury.

The order should be reversed, with ten dollars costs and disbursements, and the motion should be granted, with ten dollars costs to abide the event.

Pratt, J., concurs; Barnard, P. J., not sitting.