Citation Numbers: 28 How. Pr. 289
Judges: Balcom
Filed Date: 1/15/1865
Status: Precedential
Modified Date: 1/12/2023
By the court, Where the parties do not consent, the court may, upon the application of either,' or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference, where the trial of an issue of facts shall require the examination of a long account on either side (Code, § 271). The defendant’s counsel insists that the order of reference was erroneously granted, because the attorney of the plaintiff made the affidavit showing the joining of the issues of fact in the action and the place of the trial thereof, when no excuse was given for the omission of the plaintiff to make it. This position is untenable. If the motion had been founded exclusively upon the affidavit, it could not have been granted, for the reason that the affidavit was insufficient and was not made by the plaintiff, and no excuse was given in it for her omission to make it. (See 4 Hill, 548 ; 2 How. Pr. Rep. 7 and 157; Tiffany Smith’s Pr. vol. 1, p. 464.) But the affidavit was not relied upon to establish that the trial of the issues in the action
When the trial of a cause is moved at the circuit, if the judge is satisfied from an inspection of the pleadings that the trial of the issues of fact will require the examination of a long account, or if after a trial of a cause before a jury has been commenced at the circuit, it appears by the evidence that the trial will require the examination of such an account, the judge, of his own motion, may direct a reference of the issues to a referee to hear and determine. The court can direct a reference of any referable action on the motion of either party, whenever it is satisfied by legal evidence that the trial of the issues of fact in the action will require the examination of a long account—and the pleadings are legal evidence upon that question—and when they show that fact the court may direct a reference of the issues to a referee to hear and determine.
My conclusion is that the judge at the special term had the right, as against the defendant, to determine from the
Mason and Parker, JJ., concurred.
Decision accordingly.