Mayor of New York v. Genet

New York Supreme Court

Mayor of New York v. Genet

67 Barb. 275, 1875 N.Y. App. Div. LEXIS 33

CourtNew York Supreme Court

DecidedMay 3, 1875

StatusPublished

Cited by1 cases

This text of 67 Barb. 275 (Mayor of New York v. Genet) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mayor of New York v. Genet, 67 Barb. 275, 1875 N.Y. App. Div. LEXIS 33 (N.Y. Super. Ct. 1875).

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Opinion

By the Court, Westbrook, J.

-The gravamen of the complaint in this action is, that the defendant has drawn and received from the comptroller of the city of New York, a very much larger sum of money than “ was due for services, labor and materials necessary for, and which had been rendered and furnished in and about the construction and erection of a court house and place for the detention of prisoners, within the limits of the Ninth Judicial District of the city of New York.” The answer denied this allegation. An issue is thus fairly presented, which will probably involve the items of the accounts for labor and materials expended and used in the erection of said building. It was, therefore, a cause which the court was fully authorized to refer, under section 271 of the Code. It is true the action was not upon an account, but the trial of the issue, doubtless, involves “ the examination of a long account,” which makes the cause a referable one; and that the opinion at Special Term concedes.

The Code, however, does not require such an action to be referred. The court may try it, if it pleases, and the trial without the reference is not erroneous. The issue in this cause was joined in July, 1874. It was upon the calendar of the Circuit Court for trial in December, 1874, and the judge holding such court had full power over it. Instead, however, of moving that court, upon the calendar of which it was placed for trial, the defendant moves in another branch of the same court, before another judge, to take it from the trial court and send it to a reference ; and this motion is delayed until the cause is on the day calendar for trial. The plaintiffs are presumed to be ready with their witnesses, the defendant by no movement or notification undeceives, and after [277]*277preparation for the trial is made, the motion for a reference is unexpectedly sprung upon them. It would, it seems to us, encourage delay if the discretion of the court had been exercised in favor of the defendant, and for that reason the reference was properly denied.

[First Department General Term, at New York, May 3, 1875.

An order should be entered affirming,the decision of the Special Term, with $10 costs, besides disbursements, but without prejudice to the right of the trial court to make such a disposition of the action as it may see fit to do.

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By the Court, Westbrook, J.

-The gravamen of the complaint in this action is, that the defendant has drawn and received from the comptroller of the city of New York, a very much larger sum of money than “ was due for services, labor and materials necessary for, and which had been rendered and furnished in and about the construction and erection of a court house and place for the detention of prisoners, within the limits of the Ninth Judicial District of the city of New York.” The answer denied this allegation. An issue is thus fairly presented, which will probably involve the items of the accounts for labor and materials expended and used in the erection of said building. It was, therefore, a cause which the court was fully authorized to refer, under section 271 of the Code. It is true the action was not upon an account, but the trial of the issue, doubtless, involves “ the examination of a long account,” which makes the cause a referable one; and that the opinion at Special Term concedes.

The Code, however, does not require such an action to be referred. The court may try it, if it pleases, and the trial without the reference is not erroneous. The issue in this cause was joined in July, 1874. It was upon the calendar of the Circuit Court for trial in December, 1874, and the judge holding such court had full power over it. Instead, however, of moving that court, upon the calendar of which it was placed for trial, the defendant moves in another branch of the same court, before another judge, to take it from the trial court and send it to a reference ; and this motion is delayed until the cause is on the day calendar for trial. The plaintiffs are presumed to be ready with their witnesses, the defendant by no movement or notification undeceives, and after [277]*277preparation for the trial is made, the motion for a reference is unexpectedly sprung upon them. It would, it seems to us, encourage delay if the discretion of the court had been exercised in favor of the defendant, and for that reason the reference was properly denied.

[First Department General Term, at New York, May 3, 1875.

An order should be entered affirming,the decision of the Special Term, with $10 costs, besides disbursements, but without prejudice to the right of the trial court to make such a disposition of the action as it may see fit to do.

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67 Barb. 275, 1875 N.Y. App. Div. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayor-of-new-york-v-genet-nysupct-1875.

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