Dalzell v. Fahy's Watch Case Co.

67 N.Y. St. Rep. 353

• Court: The Superior Court of New York City
• Decided: May 6, 1895
• Status: Published

Opinion

Freedman, J.

The motion papers, upon which the plaintiff an to a to hear and determine the same, fail to show that the trial of the issues will require the examination of a long account. The character of the action has to be determined from the complaint, and the complaint sets forth a common law action only. For these reasons the motion for a reference should have been denied. There was no power to compel a reference against the objection of either party. The motion was really and avowedly made by the plaintiff, however, to obtain, by means of a reference, a discovery arid inspection of defendant’s books. A motion for such discovery and inspection had therefore been made by the plaintiff, and denied by the special term, and the order denying that motion had, on plaintiff’s appeal, been affirmed by the general term of this court. In the struggle over this attempt ón the part of the plaintiff to accomplish indirectly what had been denied to him on his direct application, the learned judge who heard the motion for a reference was induced to make an order granting such motion, unless the defendant make and serve a stipulation in writing that the cause be tried at special term, and denying the motion if the defendant so stipulate. The defendant did so stipulate. The plaintiff then appealed from the order on the ground of want of power in the court to compel a trial of the issues at special term. The counsel for the respondent, in the brief submitted on this appeal, has conceded that, if the plaintiff desires a trial by jury, he can still have it; that the stipulation signed by the defendant does not bind the plaintiff; and that the utmost effect of the stipulation is to give the plaintiff an option to try the case at special term. Under all the circumstances, it is clear that there was neither power to refer nor power to compel a trial at special term. The order appealed from should be reversed, without costs, and plaintiff’s motion for a reference denied unconditionally, without costs.