Bantes v. Brady

8 How. Pr. 216

• Court: New York Supreme Court
• Decided: May 15, 1853
• Status: Published

Opinion

Barculo, Justice.

This is an equitable suit, to which the rules applicable to common law proceedings cannot be conveniently applied. The cause was improperly referred generally, instead of being referred to enquire into a specific fact; but the parties, in some degree, remedied the mistake by adopting the natural order of things in taking their proof, and having the question of the existence of the copartnership first determined. The referee was undoubtedly correct in reporting upon the issue thus submitted to him, before proceeding to further evidence, whether the. parties consented to that course or not; for the absurdity of attempting to take an account of a copartnership business—when its very existence and terms and extent are unascertained—is apparent from the bare statement of the case.

But I think the plaintiff was irregular in taking his order of course. He is mistaken in supposing that it is a judgment under the Code, which may be thus entered upon the report of a referee. This order is not a judgment in any sense of that term. The proper practice required the plaintiff, on obtaining the report, to give notice to his adversary of the time and place of presenting the report to the court, and the nature of the order which would then be moved for. The court could then understandingly order an accounting and appoint a referee for that purpose.

For this reason the order must he vacated, with leave to the plaintiff to' move upon the report on due notice. The residue of the motion is denied. No costs are awarded.