Dewey v. Field

13 How. Pr. 437

• Court: New York Supreme Court
• Decided: November 15, 1856
• Status: Published

Opinion

Paige, Justice.

The gravamen of the complaint is, the defendant’s false return to the execution issued on the plaintiff’s judgment, and his breach of duty in not satisfying the execution out of the property in his hands attached under the attachment issued in the action against Barrett. (Code, § 2, 231, 237.)

The action is clearly in tort, and not upon contract; and is therefore not a referable action. The trial cannot require the examination of an account in the ordinary acceptance of the term. No computation of debts and credits between the parties will be necessary. The examination of numerous items of damage does not constitute an account between the parties within the meaning of that term. The determination of the measure of damages in this case will undoubtedly require an examination in respect to the value of the property attached by the defendant; but this will not be an account in the common acceptation of that term.

The provision as to references in the first edition of the Revised Statutes did not, in terms, restrict references to actions upon contract; (2 R. S. 384, § 39;) but under this provision references were invariably confined to that class of actions. (19 Wend. 110, 22; 6 Hill, 373; 3 Denio, 350; 6 Wend. 503.) The decisions in these cases are applicable to the provisions in the Code, in respect to references without the consent of the parties. (6 How. Pr. R. 427.)

The motion in this action for a reference must, therefore, be denied, upon the ground that the action is not referable under the Code without the written consent of both parties. (§§ 270, 271.)

When a motion to refer is opposed upon the ground that difficult questions of law will arise, the opposing affidavit must set forth what such questions are, to enable the court to judge whether they are questions of real difficulty. (6 John. 329; 5 Cow. 423 ; 4 id. 52.)