Silmser v. Redfield

19 Wend. 21

• Court: New York Supreme Court
• Decided: September 15, 1837
• Status: Published

Opinion

By the Court, Nelson, Ch. J.

The statute authorizing cour*; to refer causes, applies only to cases, where accounts, in the common acceptation of that term, may exist an(^ require examination. 2 R. S. 384, § 39. Actions of tort are not embraced ; for though the examination of numerous items of damage may be involved, they do not constitute an account technically or properly speaking, between the parties. This has always been the understanding of the court, as is apparent from the course of the decisions. 17 Johns. R. 129. 18 id. 26. 6 Wendell, 503. 9 id. 480. 13 id. 294. Were we to give to the statute the construction contended for by the counsel for the plaintiff, and adjudge a complicated case of tort, involving the examination of the value of numerous articles of property or other items of damage as an account within it, we should establish an entire new ground, upon which to sustain motions to refer, which has not heretofore occurred to the profession, though the statute has been in operation some fifty years. The 47th section of the act confirms the above view ; it contemplates a case where something may be due to one party or the other ; language inappropriate when applied to a case, sounding altogether in damages. There may be a reference in an action of covenant; it is founded upon contract; and in certain cases may well involve the examination of long accounts. Assuming that the case before us is not referrible within the statute, then the rule for judgment is unauthorized, and should be vacated, 13 Wendell, 293, and, cases there cited. But we cannot interfere with the report, and as that is asked to be set aside, the plaintiff was right in appearing to oppose this motion. As he is in fault, however, as to the entry of the rule for judgment, he is not entitled to costs of opposing. Neither party is entitled to costs.