Avery v. Sand

41 N.Y.S. 53, 75 N.Y. St. Rep. 510

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1896
• Status: Published

Opinion

HERRICK, J.

This is an appeal from an order of reference made-at the circuit upon the motion of the court, and against the objection of the plaintiff, referring all the issues in the action to a referee* to hear and determine. The action is one in equity. Whatever opinion I might have if this was an original question arising under section 1013 1 of the Code, I feel constrained by the decisions in the cases of Barnes v. West, 16 Hun, 68, and Thayer v. McNaughton, 117 N. Y. 111, 22 N. E. 562, to hold that the court had no right upon its motion to make the order appealed from.

The order of reference should therefore be reversed, with $10 costs-, and disbursements of this appeal. All concur.

i Code Civ. Proc. § 1013, is as follows: “The court may, of its own motion,, or upon the application of either party, without the consent of the other, direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account, on either side, and will not require the decisions of difficult questions of law. In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section, to decide the-whole issue, or any of the issues; or to report the referee’s finding, upon one or more specific questions of fact, involved in the issue.”