This is not a case for a reference. To authorize a compulsory reference, the account must not only be a long one, but it must be directly involved. It must be the immediate object of the suit, or the ground of the defense, and not arise collaterally or incidentally. This was held
The answer avers that the corn was sold in Liverpool by the plaintiffs, through their agents or brokers, and states the •exact amount in pounds, shillings, and pence that each of the three shipments brought. I do not understand that the fact of the sale of the corn, and the amount which it brought, is at all put in issue by the plaintiffs’ reply. By their reply they simply deny that they sold it and received the proceeds through their brokers, agents, or otherwise / and aver that it
This is what is meant in the statute by the investigation or examination of a long account, and it is to cases of this description that references should be confined, for the intention is not and never was to take away the trial by jury and institute a reference, except where the investigation before a jury is impracticable, or at least exceedingly difficult and unsatisfactory, as it is where there is a long or complicated account. The practice came into use when Kew York was a colony under the Dutch, and was continued after the conquest of the colony by the English as a more satisfactory mode of procedure for the investigation of matters of account than upon a trial by a jury. The Dutch, as was the usage in Amsterdam, referred the settlement of all such matters of account to three persons called arbitrators, and like some other Dutch usages or laws, this was continued for many years after Kew York became an English colony, these three persons being sometimes called arbitrators and sometimes referees (Introduction to E. D. Smith’s Reports, XLIV; 2 Rec. of Mayor’s Court; Rec. of Mayors, vols. 2 to 7). The Charter of Liberties and Privileges of 1683, however, provided that all trials should be by the verdict of twelve men (Appendix No. II to 2 Rev. Laws of 1813), which virtually abolished this mode of procedure, and there was no way then by which a matter involving an account could be tried at common law, except by an action of account. Baron
In the colony of New York the same result took place at an ■ earlier period. It was found not only that this action would not reach all cases of accounts, but also that the course of procedure in it could not be adapted to a trial by jury, which was obligatory in the colony, as I have said, by the Charter of Liberties and Privileges, for in this ancient action there were two judgments: first, that the defendant account, or as it was called, quod computet, upon which the court assigned two auditors, who were usually officers of the court, who examined the parties under oath respecting the account, a practice which did not exist in other common law actions, and there might be a new pleading before the auditors of matter in discharge of the defendant’s liability,-which, if the plaintiff denied, an issue was created, which the auditors certified to the court, by whom a venire was awarded to try it, and if that issue was found for the-.
FTo better exposition can be given of what was intended by this enactment than by quoting the preamble of this statute, which shows the nature of the mischief and the remedy that was intended to be applied. It is in these words: <£ Whereas, instead of the ancient action of account, suits are of late brought in assumpsit, whereby the business of unraveling long and intricate actions of accounts, most proper for the deliberation and examination of auditors, is now cast upon jurors, who at the bar are more disadvantageously circumstanced for such services, and this burden upon jurors is greatly increased since the law made for permitting discounts in support of a plea of payment, so that, by change of the law and practice above mentioned, the suits of merchants and others upon long accounts are exposed to erroneous decisions, and jurors perplexed and rendered more liable to attaints, and by the vast time necessarily consumed in such trials other causes are delayed and the general course of justice is greatly obstructed.” The statute then provides that if, in a suit in the Supreme Court, it shall appear probable that the trial will require the examination of a long account on one side or the other, the court may, without the consent of the parties, at its discretion, refer the cause to referees, who shall be three persons nominated by the court, &e. (2 Van Schaick Laws of New York, pp. 517, 607, 643), which was, in fact, go
I have given this brief account of the way in which references came to be adopted in this State in actions requiring the examination of long accounts, and what they were intended to remedy, because it has hitherto been but imperfectly understood, Judge Denio, in Van Marter v. Hotchkiss (1 Keyes, 586), where the point was directly involved, not being able to say whether references of this kind existed or not before the adoption of the State Constitution of 1778, and because, of late years, the courts have rather facilitated this mode of trial, instead of strictly confining it to cases where it is indispensably necessary—for it greatly protracts litigation, is dilatory, expensive, and moreover liable to abuses to which a trial by jury is not ordinarily subject.
In the present case, the question to be tried upon the pleadings, as I understand them, is, whether Campbell & Co., who have failed to pay over the proceeds of the sales, were the agents of the plaintiffs or of the defendants. If they were the agents of the plaintiffs, then their accounts of sales, which, it was admitted upon the argument of the appeal, was received by the defendants through the plaintiffs, would be conclusive upon the plaintiffs ; and if they were not, but were the agents of the defendants, then it is wholly immaterial in the case what amount the whole of the shipments sold for.
But there is a further reason why a reference in this case should not have been ordered. Neither by the Code, nor by the law .as it existed before it, is a party entitled to a reference, even though a long account has to be examined, if the investigation will also require the decision of a difficult question of law. In this case the amount involved is about $20,000, and enough has been disclosed upon this motion to show that the
There have been conflicting decisions upon the point whether an order directing a reference was appealable. In Turner v. Taylor (2 Daly, 282), we- held that it was, because, if decided erroneously, it took away a substantial right—the right of trial by jury—and the question is now set at rest by the decision of the Court of Appeals, that such an order can be reviewed upon appeal (Kain v. Delano, 11 Abb. Pr. N. S. 29; Walsh v. Darragh, 52 N. Y. R. 590).
The order should therefore be reversed.
Loew and Larremore, JJ., concurred.
Order reversed.