THAYER v. McNAUGHTON, 117 N.Y. 111 (1889)

22 N.E. 562

LINUS W. THAYER, Respondent, v. DONALD McNAUGHTON, Impleaded, etc., Appellant.

Court of Appeals of the State of New York.Argued October 21, 1889
Decided October 29, 1889

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J.W. Taylor for appellant.

L.W. Thayer for respondent.

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L.A. Hayward for respondent.

ANDREWS, J.

Section 1013 of the Code of Civil Procedure prescribes the conditions under which a compulsory reference may be ordered. It can only be done where the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law. This must appear in order to justify the court in ordering a reference against the consent of either party. There was no evidence before the court when the order of reference was made, that the statutory conditions existed upon which a compulsory reference could be ordered. There was nothing in the nature of the action or in the pleadings tending to show that the examination of a long account on either side would become necessary on the trial. The most that can be claimed is, that it is possible that the accounting demanded of the defendants of the trust fund placed in their hands to pay the unsecured

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creditors of the Rochester and State Line Railroad Company will require an account of outstanding debts and of payments made by the trustees which may consist of numerous items. But this was not averred or shown, and it is quite consistent with what is alleged in the pleadings that the debts and payments may be few in number, and that the only serious controversy on the trial will relate to the account of the plaintiff. The plaintiff’s account, as appears from the complaint, consists of but three or four items of services on one retainer, and clearly no long account is involved in proving the services or their value.

It is not enough to justify a compulsory reference that the case may, by possibility, involve the examination of a long account. There must be enough alleged or shown to justify an inference that that will be the course of the trial. The same rule applies to equitable as to legal actions. In neither case can a compulsory reference be ordered unless the trial will require the examination of a long account. In equity actions the reference may be of the whole issues, or any one of them, or to report upon specific questions of fact. But the power of the court to order the reference is limited by the general condition contained in the first clause of section 1013, which is alike applicable to cases triable by the court and cases triable by jury. (Camp v. Ingersoll, 86 N.Y. 433; Barnes v. West, 16 Hun, 68; Read v. Lozin, 31 id. 286.)

We think the order of reference was not authorized by any facts appearing before the court, and that as it was made against the protest of the defendant, it should be reversed.

Orders of Special and General Terms reversed, with costs.

All concur, except RUGER, Ch. J., not voting.

Orders reversed.

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