Thompson v. Seimer

40 How. Pr. 246

• Court: New York Court of Common Pleas
• Decided: December 15, 1870
• Status: Published

Opinion

Loew, J.

On the part of the plaintiff it is urged, that no appeal lies from the order of reference granted in this case. The authorities, it seems, are conflicting on the point. There can, however, be no doubt that if a reference were ordered in a case, clearly unauthorized by law, as for instance, in an action for libel, false imprisonment or other wrong, or where the claim consists of only one or two items, the order would affect a substantial right and would, therefore, be appealable. (Gray agt. Fox, 1 Code Rep., N. S., 334; Cram agt. Bradford, 4 Abb,. 201; Whitaker agt. Desfosse, 7 Bosw., 678; Harris agt. Mead, 16 Abb., 257 ; Dickinson agt. Mitchell, 19 Abb., 586.)

But where the action is referable in its nature, and either by reason of a conflict of proofs or otherwise, in is doubtful whether the examination of a long account is involved or not, the judge to whom the application is made, may exercise his discretion in the premises, and his order is final and cannot be reviewed on appeal. (Gray agt. Fox, supra; Smith agt. Dodd,, 3 E. D. Smith, 348; Bryan agt. Brennon, 7 How., 359; Dean agt. Empire Mutual Ins. Co., 9 How., 69; Ubsdell agt. Root, 1 Hilt., 173; Whitaker agt. Desfosse, supra ; Baker agt. Nussbaum, 1 Hilt., 549.)

In this case the bill of particulars, it is true, contains but three items.

Ordinarily, of course, they would not constitute a long account; but here they appear to be gross charges for much work and labor performed, and services rendered in a long patent suit in the United States court.

In addition, the affidavit of plaintiff’s counsel set forth, that the trial involved the examination of a long account, and the affidavit of defendant’s counsel did not deny it.

We are not, therefore, prepared to say that the issue between the plaintiff and defendant, will not require the examination of a long account.

But even supposing that such will not be the case, we think sufficient was shown for the exercise of the discretion of the judge who made the order, and it cannot, therefore, be interfered with by us.

The appeal should" be dismissed.

Chief Judge Daly concurred.