Cochran v. Thurber , 21 N.Y. St. Rep. 37 ( 1889 )

Van Brunt, P. J.

In the disposition of this appeal it is not necessary to determine whether, under any circumstances, this action is referable. It certainly cannot be referred in its present condition. It appears that there are defendants whose time to answer had not expired, and whose answers had not been served. It is a familiar rule that an action cannot be referred until it is at issue as to all of the defendants. "That this must be the case seems to be apparent from the fact that it cannot be determined as to whether difficult questions of law will arise upon the trial of the ease until the issues are presented upon the pleadings; and it seems also apparent that each defendant has-the right to have his pleadings considered, as well as those of his co-defendants, in determining this (in many instances) important question. Although it may be important to expedite the hearing of this case, yet such haste should not be indulged in as would violate the plain rules governing the disposition of motions of this description. An issue cannot be referred until it is presented, and such a reference seems to be attempted by the order in question. The order should be reversed, with $10 costs and disbursements. All concur.