Brooklyn & Rockaway Beach Railroad v. Reid

Headnote

Action for a b'each of the covenants contained in a lease — when it involves the examination of a long account, so as to authorize a compulsory reference thereof— interposition of a counter-claim in such an action, does not prevent its reference — Code of Civil Procedure, § 974.

Appeal from an order made at a Circuit, referring this action to a referee to hear and determine.

The court at General Term said: “ This seems to be a plain case for a reference. The complaint avers facts showing various claims under a lease given by the plaintiff to one William Richardson, and by him assigned to the defendant. The subject of the lease is a railroad and its appurtenances. The claim of the plaintiff includes rent and numerous violations of the covenants of the lease, resulting in damages. It is apparent that such breaches of the covenants thereof will involve many items. There are items of insurance, items of - taxes, items for damages for failure to keep fences along the road, and to keep the road-bed in repair, items of damages for property lost by fire, by reason of a failure to insure, and claims for a failure to expend money received -from buildings burned, and for which the defendant recfeived the insurance money, items, apparently numerous, for articles which, by the lease were delivered to the lessee by the lessor, and which were to be returned at the end of the lease, and which were not returned.

££ The defendant claims $5,000 for services and expenses in obtaining a right of way for a branch road for the plaintiff'. The case is evidently one where, with such a large amount of items in dispute, a jury could not justly determine it. The items are too many to be retained in the mind of a jury, who keep no minutes of the evidence. Section 974 of the Code of Civil Procedure is not designed to send a counter-claim made by a defendant to a jury, in an action which is referable by reason that the trial will involve the examination of a long account.”