Henry G. Hilton, Respondent, v. John M. Hughes, Appellant

Henry G. Hilton, Respondent, v. John M. Hughes, Appellant. Compulsory reference — not ordered where the right to an accounting depends upon the manner in which other questions are decided. "Where the examination of an account between the parties to an action is dependent upon the decision of the questions whether the relation between them is that of principal and agent, and whether the defendant has done wrongful acts, the court should itself first detei-mine these questions, and only order a reference in case its decision shall make it necessary that a long account be examined. Appeal by the defendant, John M. Hughes, from an order of The Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of March, 1896, referring the issues in the action to a .referee to hear and determine the same. The reference was ordered without the defendant’s consent and against his objection, on the ground that the trial would involve the examination of a long account. The action was brought in equity, the complaint alleging unauthorized and unlawful acts on the part of the defendant with reference to the plaintiff’s real estate, intrusted to the care and management of the defendant as agent of the plaintiff, the violation of a trust and a fiduciary relation between the parties, and the misappropriation of moneys received from the wrongful incumbrance and sale of the real estate by the defendant, and praying for an accounting with reference to the management of the property, and that the defendant be compelled to reduce the amount of one mortgage upon the property, and to satisfy another mortgage thereon, and to restore the property to the condition in which it was before such unauthorized and unlawful acts were committed by the defendant, and for other relief. The defendant denied the allegations as to unlawful acts, and .alleged a partnership with reference to the property, etc. Henry A. Forster, for the appellant. H. M. Whitehead, for the respondent. [MAJORITY — Williams, J.:] Williams, J.: We are of the opinion that the trial of this action did not involve the examination of a long account within the provision of the Code of Civil Procedure, so as to authorize the court to order a reference against the objection of the defendant. The examination of a large account was not necessarily involved. The examination of any account was dependent upon the determination of the question whether the relations of the parties were' those of principal and agent, or not; whether the wrongful acts alleged were committed by the defendant or not. The court should itself have determined this question, and if its determination was such as to require such an accounting, the court might then order a reference to take such account. This is the practice generally adopted, and should have been adhered to in this case. (Camp v. Ingersoll, 86 N. Y. 433 ; Empire State Tel. & Tel. Co. v. Bickford, 142 id. 224; Morrison v. Van Benthuysen, 103 id. 675; Doyle v. M. E. R. Co., 136 id. 505.) The order appealed from should be reversed, with costs of appeal, and the motion denied, with ten dollars costs. Barrett, Rumsey, Patterson and Ingraham, JJ., concurred. Order reversed, with costs of appeal, and motion denied with ten dollars costs.