¶1The statute authorizing cour*; to refer causes, applies only to cases, where accounts, in the common acceptation of that term, may exist an(^ require examination. 2 R. S. 384, § 39. Actions of tort are not embraced ; for though the examination of numerous items of damage may be involved, they do not constitute an account technically or properly speaking, between the parties. This has always been the understanding of the court, as is apparent from the course of the decisions. 17 Johns. R. 129. 18 id. 26. 6 Wendell, 503. 9 id. 480. 13 id. 294. Were we to give to the statute the construction contended for by the counsel for the plaintiff, and adjudge a complicated case of tort, involving the examination of the value of numerous articles of property or other items of damage as an account within it, we should establish an entire new ground, upon which to sustain motions to refer, which has not heretofore occurred to the profession, though the statute has been in operation some fifty years. The 47th section of the act confirms the above view ; it contemplates a case where something may be due to one party or the other ; language inappropriate when applied to a case, sounding altogether in damages. There may be a reference in an action of covenant; it is founded upon contract; and in certain cases may well involve the examination of long accounts. Assuming that the case before us is not referrible within the statute, then the rule for judgment is unauthorized, and should be vacated, 13 Wendell, 293, and, cases there cited. But we cannot interfere with the report, and as that is asked to be set aside, the plaintiff was right in appearing to oppose this motion. As he is in fault, however, as to the entry of the rule for judgment, he is not entitled to costs of opposing. Neither party is entitled to costs.
19 Wend. 21
Silmser v. Redfield
Decided September 15, 1837
New York Supreme Court · decided 1837-09-15
Report of referees. This was an action on the case, for injuries done to a scow of the plaintiff,, by the steamboat of the defendants coming in collision with it. The cause was referred to a single referee, who made a report in favor of the plaintiff, upon which a rule for judgment was entered. A motion was made to set aside the report, and to vacate the rule for judgment as irregularly entered.
Good law ✅— No negative treatment on recordhow we know
Decided 1837-09-15
How this case has been cited
Cited by 9 later decisions — most recently December 1931
8 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
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