Streat v. Rothschild
12 Daly 95
New York Court of Common Pleas
1883
Check Treatment
Beach, J.

[After stating the facts as above.]—This is an action in equity, for trial by the court without a jury. A compulsory reference, however, cannot be ordered, unless the examination of a long account on either side will be required, and the decision of difficult questions of law will not be called for (Code Civ. Pro. § 1013; Camp v, Ingersoll, 86 N.Y. 433).

Although there may be some uncertainty in applying the numerous adjudications upon this subject, I think a proper construction is adverse to the power of the court to direct a compulsory reference unless the trial of the issue will necessitate the examination of a long account (Kain v. Delano, 11 Abb. Pr. N. S. 29; Townsend v. Hendricks, 40 How. Pr. 143). It was held by this court, in Turner v. Taylor (2 Daly 278), that the account must be directly in issue, and not the subject of examination collaterally to establish some one of the issues in the action. The pleadings admit the partnership, and all required of the plaintiff is to give in evidence the agreement. The practice of the court in this class of actions is to send the partnership *98accounts to be stated by a referee, but this has been done by the court for economy of time, and not because either suitor had the legal right to require it.

The issue here is upon the efficacy of the release, and that is raised by the plaintiff, not by virtue of his complaint, but in rebuttal. To prove this contention, entries in books of account may be given in evidence, but this is not the examination made requisite by the statute. The reference there is to an examination of items in issue between the parties, and affecting the judgment either by their allowance or disallowance in whole or in part.

In Welsh v. Darragh (52 N. Y. 590.) the action was at law for the price of goods sold and delivered, and it was held its character could not be changed by an answer alleging fraud in the transaction, with claim of damage by way' of recoupment. Proof of plaintiff’s account was necessary, and the defense; under less liberal rules of practice, must have been the subject of an independent action. No such question is presented by this appeal, because the character of the action is in nowise affected by the answer, but it remains one where 'an accounting may not be had until the plaintiff succeeds; upon an issue, the disposition whereof the defendant has the right to demand should be made by the court rather than by a referee (Wheeler v. Falconer, 7 Robt. 45).

'The order should'be reversed, with ten dollars costs and disbursements to abide the event.

Charles P. Daly, Ch. J., concurred. ‘

Van Brunt, J., concurred in the result.

Order reversed, with costs to abide event.