Hoffman House v. Hoffman House, Café , 55 N.Y.S. 763 ( 1899 )

Rumsey, J.:

The complaint, in the schedule attached to and made a part of it, alleges the delivery by the plaintiff to the defendant at various times from the 1st day of June, 1894, to the 12th of June, 1897, of a large number of items of provisions, liquors and other supplies, for use in the restaurant of the defendant, and various items of work done and services rendered for the benefit of the defendant during the same time. If it shall be necessary for the plaintiff to establish the delivery of all these goods and the rendition of these services, it is quite evident that such proof will require the examination of a long account, and that the action is clearly referable within the rule laid down by section 1013 of the Code of Civil Procedure, as construed by the leading case of Camp v. Ingersoll (86 N. Y. 433); because the referable character of the case is determined by the complaint. (Untermyer v. Beinhauer, 105 N. Y. 521.) The answer does not relieve the plaintiff from the necessity of making ■this proof, because, although it admits-that, at various times between the 1st of June, 1894, and the 14th of January, 1898, the plaintiff furnished the defendant, at its request, certain goods, wares and merchandise, and performed for it certain work, labor and services, it denies all the other allegations in the complaint; and, therefore, it does not relieve the. plaintiff from the necessity, of proving the delivery of each of these goods, and the rendition of every one of the services charged for, and the value of each of the items. The order, therefore, .so far as it referred the issues raised by the denial of the complaint and the affirmative defense set up, was clearly correct.

But within the rule laid down by section 974 of the Code of Civil Procedure, the defendant is, nevertheless, entitled to a trial by jury of the issues arising upon its counterclaim. That section provides that when the defendant interposes a counterclaim and demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising therefrom is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim and demanding the same judgment. Down to a very recent period the courts had held that if the cause of action set out in the complaint was referable, the plaintiff was entitled to a compulsory reference of all the issues raised by all the pleadings in the action, .notwithstanding the provisions of section 974. (Brooklyn & Rockaway Beach R. R. Co. v. Reid, 21 Hun, 273; Robinson v. N. Y., L. E. & W. R. R. Co., 55 N. Y. Super. Ct. 152.) But later decisions seem to have changed that rule. (Deeves v. Metropolitan, etc., Co., 6 Misc. Rep. 91; affd., 141 N. Y. 587; McAleer v. Sinnott, 30 App. Div. 318.) The case of Deevess v. Metropolitan, etc., Co. (supra) was affirmed by the Court of Appeals upon the opinion which is reported in the sixth volume Of the Miscellaneous Reports. These last cases clearly establish the ■rule that, although upon an examination of the complaint and the .answer, it appears that the cause of action of a plaintiff is referable, ■yet if the counterclaim sets up a cause of action in favor of the defendant which would entitle him to a trial by jury, he does not lose his right to such a trial although so much of the action as 'involves the plaintiff’s claim is referred. In neither of the cases last cited is any reference made to the case of Brooklyn & Rockaway Beach R. R. Co. v. Reid, or Robinson v. N. Y., L. E. & W. R. R. Co., where a different rule is laid down. ■ But yet, as the later cases establish the rule as stated above, it must be regarded that the two former cases are overruled and no longer to be followed. For this reason the order of reference was too broad, and it should be modified by referring the issues raised by the complaint and the defenses to it, leaving the issue raised by the counterclaim and the reply to be tried by a jury in the usual way. As thus modified the order must be affirmed, without costs to either party in this court.

Van Brunt, P. J., Barrett, Patterson ■ and O’Brien, . JJ.-, . concurred.

Order modified as directed in opinion, and, as modified, affirmed, without costs to either party.