M'Cullough v. Brodie

Bosworth, Justice. It may be true, that the class of actions in which the court can order the whole action to be tried by the referee, without the consent of either party, is enlarged by the Code; but the fact which warrants the exercise of the power is the same now as when the Revised Statutes alone gave the authority to refer. (19 Wend. 31; 25 id. 687; 6 id. 503.) By 2 R. S. 384, § 40, the court could order a cause to be referred, whenever it was made to appear that the trial would " involve the examination of a long account on either side.” By the Code, a reference may be ordered, “where the trial of an issue of fact shall require the examination of a long account on either side.” (Code, § 271, sub. 1.) The language of the two statutes, prescribing the condition on which a reference may be ordered, compulsorily, is the same. In Van Rensselaer and others agt. Jewett, (6 Hill, 373,) the [348] court vacated an order of reference which had been made at the circuit by a circuit judge. It was vacated on the ground, among others, that the cause was not referable. The action was covenant against the assignee of a lease, to recover nine years’ rent; the annual rent being eighteen and three quarter bushels of wheat,'four fat hens, and one day’s service with carriage and horses. The court held, that unless there was an account between the parties, in the ordinary acceptation of the term, there could not be a reference, although there might be many items of damage. Except as to the $450, advanced as part of the contract price, the trial will not involve an inquiry in relation to payments made by either to, or property received by either from, the other. There is nothing in the nature of the items of expenditure, claimed as damages, to support the allegation, that the trial will involve the examination of a long account, which would not exist in, and as much authorize a reference of any action, brought to recover various items of special damage. When the items to be investigated are made the subject of examination, in order to recover damages, strictly and properly so called, either party has a right to have the issue tried by a jury, unless it be joined in an action which the Code requires the court to try. I think the action is not referable, without the consent of the parties, and the motion must be denied.'