Devlin v. Mayor

54 How. Pr. 50 | New York Court of Common Pleas | 1877

Daly, C. J.

It may be very desirable, so far as questions of fraud are concerned, that this action should be tried by a jury, but the difficulty is, as the court has suggested below, that there is also involved in this case an amount of detail in respect to the items of the plaintiff’s claim, which it would be impossible for any jury to keep in their mind, with the evidence bearing upon each particular item. This is essentially a case for a reference, a reference being the only mode in which the matters involved in such a case can be intelligently and accurately passed upon. I should certainly be in favor of having this case tried by a jury if I thought that they could intelligently pass upon the whole case, and I do not see that we can separate the issue of fraud so as to have that tried in the first instance as a separate issue, and if that is found in favor of the plaintiff, then to order a reference for the purpose of ascertaining the. amount that he is entitled to recover. This may be done in equitable actions, but this is not an action of that nature, but a common-law action, in which the plaintiff is entitled under the Code to a reference, if it involves the examination of a long account, and that it does is beyond dispute.

The testimony which has been already before us, embraces seven large printed volumes, the great bulk of the evidence in which relates directly to a mass of items involving the plaintiffs’ claim under a contract of a very extensive nature. I think, therefore, that the order below should be affirmed.