Sheldon v. Wood — 5 N.Y. Super. Ct. 739

Majority

p. 739

Sheldon and others v. Wood.

Headnote

The provision of the code, relative to the reference of causes, is much broader than that of the revised statutes.

Where the trial of the issue in the cause will require the examination of a long account on either side, a reference will be ordered, although it appear that the ground of the action is fraud.

May 10, 1851.

The plaintiff moved in this cause for a reference, which was opposed, on the ground that the action was founded upon alleged frauds of the defendant. The motion was heard before the Chief Justice and Mason, J., and decided with the concurrence of the entire court.

E. Smdford, for the plaintiff.

T. W. Tudkerr, for the defendant.

The court has power to order a reference in actions

p. 740

sounding in tort, where the trial of the issues of fact shall require the examination of a long account. Therefore where an action is brought to recover back money alleged to have been fraudulently charged in an account between the parties, a reference will be ordered, though the ground of the action is the fraud of the defendant.

Section 271 of the code is broader in its terms than the provisions of the revised statutes on the same subject. The latter provided for the appointment of'referees in actions founded on contract; the code authorizes a reference in all actions whatever.

We think that the account in this cause could not well be investigated and settled by a jury, and the motion for a reference is therefore granted, the costs to abide the event of the suit.