Mitchell v. Oliver

Decided March 28, 1890

New York Supreme Court · decided 1890-03-28

<p>■Compulsory Reference—Practice.</p> <p>Under Code Civil Proc. if. Y. § 1013, authorizing a compulsory reference where the trial will require the examination of a long account, a reference will not be ordered because the answer sets up a counter-claim consisting of numerous items, when the items result collaterally from an agreement between the parties to loan, advance, and sell on the one hand, and on the other to manufacture and consign for sale, and depend expressly upon the charge that defendant had suffered damages from the alleged misconduct of plaintiff.</p>

Decided 1890-03-28

Daniels, J.

¶1I concur in the conclusion that the issues in this action could not be referred without the consent of each of the parties. Where, however, a long account may be in issue in favor of the . defendant, a reference may now be ordered by the court without such consent. Section 1013 of the Code of Civil Procedure has been so amended as no longer to make the power of the court to order a reference dependent on the complaint alone. How, where the trial will require the examination of a long account on either side, a reference may be ordered without the consent of either party. This is not such an action; and the order of reference, being resisted by one of the parties, was erroneously made, and should be reversed, and the motion denied.

¶2Van Brent, P. J., concurs.'