Wamsley v. H. L. Horton & Co.

23 N.Y.S. 85 | N.Y. Sup. Ct. | 1893

PER CURIAM.

We concur with the counsel for the appellant that references under section 1015¹ of the Code, in respect to disputed questions of fact arising upon motions, should only be ordered' in extraordinary cases. In fact, it should only be resorted to when such a reference is absolutely necessary to determine questions of" fact which are of vital importance, arising upon motions before the court. A reference upon a motion is frequently a great abuse of the discretion vested in the court by this section, as it requires-large expenditures of money in the shape of referee’s and stenographers’ fees, and to procure the attendance of counsel, which are utterly disproportionate to the importance of the questions involved either in the action or .upon the motion.. We think,, therefore, that in the case at bar, upon the facts presented, the court should not have ordered the reference from which an .appeal is taken; but we are of opinion, in view of the conclusions* arrived at by the court as evidenced by its opinion, and which were justified by the papers before it, that it should have disposed of the motion by denying the same.- We think, therefore, that the order of reference should be reversed, and the motion sent back to the special term, in order that it may be disposed of upon the papers which were then before the court, with $10 costs and disbursements of appeal, to abide the final disposition of the motion.

1 Thiss section provides: “The court may likewise, of its own motion, or upon the application of either-party, without the consent of the other, direct a reference to take an account and report to the court thereon, either with or without, the testimony, after interlocutory or final judgment, or where it is necessary to do so, for the information of the court; -and also to determine and report upon a question of fact, arising in any stage of the action, upon a motion or otherwise, except upon the pleadings.”