Kennedy v. Horikoshi

Appellate Division of the Supreme Court of New York

Kennedy v. Horikoshi

81 N.Y.S. 827

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 24, 1903

StatusPublished

This text of 81 N.Y.S. 827 (Kennedy v. Horikoshi) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kennedy v. Horikoshi, 81 N.Y.S. 827 (N.Y. Ct. App. 1903).

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Opinion

WILLARD BARTLETT, j.

We agree with the learned judge who made the order at Special Term that the pleadings in this action, if the counterclaim be left out of consideration, do not authorize a compulsory order of reference. The motion was granted solely because the learned judge thought that the examination of a long [828]*828account was rendered inevitable by the allegations of the counterclaim. It is settled, however, that, where the plaintiff’s cause of action is disputed, a counterclaim cannot operate to make the case referable by compulsion which otherwise would not thus be referable. Where the complaint sets out a cause of action- on contract, and this is put in issue by the answer, which also sets up a counterclaim requiring the examination of a long account, it is error to order a reference of all the issues on the motion of the plaintiff against the objection of the defendant. Steck v. Colorado Fuel & Iron Co., 142 N. Y. 236, 37 N. E. 1, 25 L. R. A. 67. In the case cited this proposition was laid down in a carefully considered opinion of the Court of Appeals by Earl, J., against the dissent of three members of the court, expressed in a carefully written opinion by Chief Judge Andrews. We do not find that the decision on this point has since been qualified or questioned, and it is clearly our duty to follow it. The order of reference must therefore be reversed.

Order reversed, with $10 costs and disbursements, and motion denied, with costs. All concur.

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WILLARD BARTLETT, j.

We agree with the learned judge who made the order at Special Term that the pleadings in this action, if the counterclaim be left out of consideration, do not authorize a compulsory order of reference. The motion was granted solely because the learned judge thought that the examination of a long [828]*828account was rendered inevitable by the allegations of the counterclaim. It is settled, however, that, where the plaintiff’s cause of action is disputed, a counterclaim cannot operate to make the case referable by compulsion which otherwise would not thus be referable. Where the complaint sets out a cause of action- on contract, and this is put in issue by the answer, which also sets up a counterclaim requiring the examination of a long account, it is error to order a reference of all the issues on the motion of the plaintiff against the objection of the defendant. Steck v. Colorado Fuel & Iron Co., 142 N. Y. 236, 37 N. E. 1, 25 L. R. A. 67. In the case cited this proposition was laid down in a carefully considered opinion of the Court of Appeals by Earl, J., against the dissent of three members of the court, expressed in a carefully written opinion by Chief Judge Andrews. We do not find that the decision on this point has since been qualified or questioned, and it is clearly our duty to follow it. The order of reference must therefore be reversed.

Order reversed, with $10 costs and disbursements, and motion denied, with costs. All concur.

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Bluebook (online)

81 N.Y.S. 827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kennedy-v-horikoshi-nyappdiv-1903.

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