Smith v. Dodd , 3 E.D. Smith 348 ( 1854 )

By the Court. Woodruff, J.

Upon a mere examination of the pleadings, my first impression would be that this case so far as it depends upon the complaint alone, and the denials thereof, might be tried by a jury; but it is quite obvious that if the matter of the defendants’ counter claim is to be examined, as it must be, if they show a breach of the agreement in question, entitling them to recover back their alleged advances, a reference would be quite necessary, and probably inevitable.

I can therefore readily perceive that, upon the opening of the case when called for trial at the special term, the presiding judge might at once have seen that the taking of an account of the plaintiff’s and defendants’ respective advances would be involved in the trial.

Whether these advances were made and to what amount were matters distinctly in issue by the pleadings, and the ascertainment of the amounts respectively might be essential.

The action was referable in its nature, and when the court was satisfied that the taking of such an account was necessary, there was no lack of power to refer.

Under such circumstances, I am of opinion that the order to refer was not appealable, but that it was a matter in the discretion of the judge before whom the cause was called for trial. Gray v. Fox, 1 Code Rep. N. S. 334, is a decision to that effect, and the decisions under the Code, that an order which rests in the discretion of the court is in general not appealable, are almost without number.

But if I were to consider the appeal on its merits, I should not be disposed upon a mere inspection of the pleadings to interfere with the order. The reasons adverted to above seem to me to warrant the reference, and although I should, upon the papers, incline to direct a reference of the whole issues, instead of a portion of them, separately, I cannot say that the discretion of the judge was erroneously exercised.

In general, the taking of an account where the issues are of this complex character, follows the trial of the other issues, as when the liability to account is denied, or the question of liability to any extent is proper to be determined before any inquiry is had to determine the items embraced within the rule of liability; but where the right of the plaintiff to recover at all upon any of the grounds claimed, depends upon the ascertainment of the amount, as well as sufficiency of the defendant’s alleged advances, which advances are wholly denied by* the plaintiff, a reference may be proper in the first instance.

If the plaintiff supposed, as his counsel now contend, that the trial would not involve the inquiry into the amount of the advances which were respectively claimed and denied on the pleadings, he could easily have avoided the reference by admitting the state of these advances on both sides to be as claimed by the defendants, and then no reference could have been necessary.

A reference under very similar circumstances, where, as here, the complaint was that the defendant did not make the advances he was by agreement bound to make, was ordered in the Supreme Court, as mentioned in the opinion of Judge Mitchell in Graham v. Golding et al. 7 How. Pr. Rep. 261. See also Sheldon v. Wood, 1 Code Rep. 118.

I think the order should be affirmed, or the appeal be dismissed with $10 costs; and deeming the order not appealable, although I have noticed the merits, the latter seems to me the proper disposition of the appeal.

The order entered on the decision at the general term was, that the appeal be dismissed, and the order at special term be affirmed, with $10 costs.