Hill v. Reynolds , 104 N.Y.S. 303 ( 1907 )

Sewell, J.:

It is plain that the primary purpose of this action is to- obtain an accounting, and that the trial will require the examination of a long account as to three of the causes of action set forth in the complaint. The fact that the second cause of action may be regarded as calling for a determination of. the rights of the parties independent of the state of their accounts did not deprive the court of the power to refer. •

It has been repeatedly held -that where one count or one cause"of action requires the examination of a long account the action is referable.. (Whitaker v. Desfosse, 7 Bosw. 678; Goodyear v. Brooks, 2 Abb. Pr. [N. S.] 296, Batchelor v. Albany City Ins. Co., 6 id. 240; Place v. Chesebrough, 4 Hun, 577; Connor v. Jackson, 53 App. Div. 322.)

The entire claim of the plaintiffs could have been properly stated as a single cause of action and thus have avoided any objection on account of the division into different causes of action. •

Hilton v. Hughes (5 App. Div. 226) and Jordan v. Underhill (71 id. 559)- differ materially from the case at bar. In each of these cases the right of the plaintiff to an accounting was denied and depended upon . the - determination of other "questions. Heither is the case of C. & C. Electric Co. v. Walker Co. (35 App. Div. 426), also relied upon by the defendants, an authority upon this appeal. In that action the account was not. the immediate object of the action or directly involved,- and there was no trust or fiduciary relation between the parties. This case has all the referable qualities. The facts entitling, the plaintiffs to an accounting are substantially conceded; the account is complicated; there is need of a discovery, and by force of the contract relations of a fiduciary nature existed between the parties.

I am of the opinion that the granting of the order of reference was a matter for the exercise, of the discretion of the court, and .that the order should be affirmed, with ten dollars costs and disbursements.- .

All concurred, except Smith, P. J., dissenting in opinion, in' which Cochrane, J., concurred.