88 N.Y.S. 867 | N.Y. App. Div. | 1904
Lead Opinion
The action is to recover a sum of money based upon a contract of employment, whereby the defendant employed the plaintiff to
The answer denies each and every allegation of the'complaint, except that it admits that the sum of $34,067.36 has been paid by the defendant to the plaintiff; sets forth several affirmative defenses, and a counterclaim based upon a sale by the defendant to the plaintiff of certain goods, wares and merchandise for which the defendant claims the plaintiff promised and agreed to- pay to the defendant the sum óf $2,142.48, and he demands an affirmative judgment against the .plaintiff for that sum. To this the: plaintiff interposed a reply.
Upon the pleadings and ah affidavit that the trial would require the examination of a long account which would! embrace an accounting of the business covering a period of more than thirteen years, and would necessitate the examination of more than 600 statements of weekly-sales made up and delivered by the plaintiff to the defendant, as his manager, and the examination of more than 1,000 bills of goods sent by the defendant and charged by him against .the business conducted by the plaintiff, the plaintiff made a motion to refer the issues for trial. The court denied the motion upon the ground that as the contract relied upon is disputed an accounting will be necessary only in the event of the plaintiff succeeding on the main issue, and a compulsory reference should not be ordered.
This action is one at law. It must be tried, by a jury, and upon the trial thé plaintiff will not only have to prove his contract, but
There is no question, therefore, but that the action was referable, and, as it seems entirely clear that the action cannot be tried by a jury, we think the motion should have been granted.
It follows that the order appealed from must be' reversed, with ten dollars costs and disbursements, and the motion granted.
Patterson, McLaughlin and Laughlin,, JJ., concurred.
Concurrence Opinion
I concur upon the ground that Rowland v. Rowland (supra), holds that the court in such a case has power to rfefer.
Order reversed, with ten dollars costs and disbursements, and motion granted.