Degener v. Underwood

7 N.Y.S. 681, 1889 N.Y. Misc. LEXIS 1249

• Court: The Superior Court of the City of New York and Buffalo
• Decided: November 22, 1889
• Status: Published

Opinion

Per Curiam.

The moving papers upon which the order of reference was granted, and which included the pleadings, satisfactorily established that the trial of the issues would require the examination of a long account, containing 714 items, on the part of the plaintiff; that it would not require the decision of any difficult questions of law; and that an “account” between the parties, in the proper acceptation of the term, was directly involved.

It was no answer to the motion to say that the defendants intended to amend their answer. Enos v. Thomas, 4 How. Pr. 290. The foundation of the practice in the courts rests upon acts, and not upon mere intentions. The case, as it appeared upon the moving papers, was clearly referable, and consequently no error was committed in granting the order of reference. The amended answer, which was subsequently served, in no way lessened the necessity of a reference. The incorporation of a counter-claim rather increased the necessity. On the motion to vacate the order of reference, on the ground that the issues had been changed by an amendment to the answer, the burden of proof was on the defendants to establish that the answer, as amended, rendered a reference unnecessary. This they wholly failed to establish. The case presents only questions of practice, and not of jurisdiction, and upon all the facts we cannot say that the several judges who made the orders appealed from abused the discretion vested in them. The orders appealed from should be severally affirmed, with costs and disbursements.