9 How. Pr. 69 | N.Y. Sup. Ct. | 1853
If an order be made referring an action for slander, or assault and battery, or other mere wrong, it would undoubtedly be appealable. The last clause
But when the trial of an issue of fact will involve the examination of a long account, it may be referred. No right is violated by an order of reference in such a case; and whether such an examination will be involved, is a question of fact to be determined summarily by the tribunal to which the application is made. If there be evidence enough to call for a judicial determination upon the question, I suppose the decision should be regarded as conclusive. I do not think the court, upon appeal, should undertake to decide upon the weight of evidence. Having seen that a' case is presented which might be referred, the question of right is disposed of, and all else is matter of discretion, and, of course, not to be reviewed up.on appeal.
In this case, one of the plaintiffs’ attorneys stated in his affidavit that the trial would necessarily require the examination of a long account. This was sufficient evidence to authorize the court, at special term, to find that fact, and having found it, it was then referred to the discretion of the court to determine whether the cause ought to be referred or not. Having decided, upon sufficient evidence, that the case was referable, and, being referable, that it ought to be referred, I think the decision of the special term ought not to be reviewed upon appeal. The order should therefore be affirmed with costs. ,
