30 A.D. 318 | N.Y. App. Div. | 1898
The plaintiff brings this action to recover a balance of $4,562.62, . which he alleges to be due to him from the firm of Moore & Sinnott, in payment of work, labor and services done and performed for them as manager of their liquor business in Few York city in 1893 and 1894. The answer denies that the' plaintiff’s services were worth the amount alleged in the complaint, and avers that the plaintiff has been fully paid the entire sum due him, except the sum of $861.18. By way of counterclaim the answer charges the plaintiff with violations of his contract of employment, resulting in damage to the firm in the amount of $4,561.83.
Upon the pleadings and an affidavit by the plaintiff that the trial of the action would require the- examination of a long account, the court at Special Term has referred all the issues to a referee to hear and determine.
It seems quite clear that we ought to reverse this order. There was no power, against the objection of the defendant, to refer the firm’s counterclaim for damages growing out of the plaintiff’s alleged breach of the contract of employment. Where a counterclaim is interposed demanding ah affirmative judgment against the plaintiff, the issues of fact arising thereon are triable in the same manner as though the cause of action stated in the counterclaim had been stated in the complaint. (Code Civ. Proc. § 974.) The counterclaim here simply asserts a common-law demand for damages, such as must be tried before a jury, if a party asserting the demand so requires. (Deeves v. Metropolitan, etc., Co., 6 Misc. Rep. 91; affd., 141 N. Y. 587.)
In part, therefore, the order of reference must at all events be vacated. It seems to me, however, that the reversal should extend
Thé order should be reversed, with ten dollars costs and disbursements.
All concurred. '
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.