Henry Huber Company, Respondent, v. Charles F. Rogers; Appellant

Henry Huber Company, Respondent, v. Charles F. Rogers; Appellant. First Department, February 3, 1911. Reference.— examination of long account — proof prerequisite to order — form of order — costs. A trial justice has no power to withdraw a juror and direct "a reference in an action at law in the absence of papers showing that the.trial will necessitate the examination of a long account and will not involve difficult questions of law. Moreover, if such facts appear from the pleadings, admissions of counsel, or by the testimony at trial, the order of reference should specify that the pleadings, admissions or testimony were considered, and that from them the court reached the conclusion that the reference was proper. One appealing from an order of reference is entitled to have the order resettled so as to contain a recital of the papers considered by the judge. Where a party successfully appeals from an order of reference,, from an order denying a motion to resettle it by specifying the papers upon which it was granted, and from an order denying a motion to set the order aside as irregular under rule 3 of the General Rules of Practice, he should be allowed ten dollars costs and disbursements in each appeal. Appeals by the defendant, Charles F. Rogers, from two orders of the Supreme Court, made at the New York Trial Term and entered in the office of the clerk of the county of New York, one on the 5tli day of December, 1910, referring the issues to a referee, and the othei* on the 9th day of January, 1911, denying the defendant’s motion to resettle the order entered on the 5th day of December, 1910, by reciting therein the papers upon which, it was based; and also an appeal from an order made at the New York Special Term and entered on the 9tli day of January, 1911, denying the defendant’s motion to set aside the first above-mentioned order as irregular under rule 3 of the General Rules of Practice. Alexander B. Siegel, for the appellant. Donald McLean, for the respondent. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: Three separate appeals, (1) from an order of compulsory reference ; (2) from an order denying a motion, to resettle such order by specifying therein the papers upon which it was granted ; and (3) from an order denying a motion to set aside the same as irregular under rule 3 of the General Rules of Practice in that the same failed to specify the papers upon which the order of reference was made. The three appeals were,' argued together. The order of reference and the whole of it, omitting the caption and the initials of the judge, is as follows : “ This cause having duly come on to be tried at a Trial Term, Part XIY of this court, held in and for the County of New York at the County Court House, Borough of Manhattan, City of New York, and it appearing to the satisfaction of the Court that the trial will require the examination of a long account, and that a trial by jury is impracticable," and that the trial does not involve any difficult question of law, “ How, on motion of the Court,, it is “ Ordered, that this cause and all the issues-therein are hereby referred to William Klein, Esq., of New York City, as Referee, to hear and determine.” The record on appeal consists simply of the notice of appeal, the order referred to, and an affidavit to the effect that no opinion was delivered other than'oral statements made by the learned ' trial justice withdrawing a juror and-directing the reference, which statements the appellant’s counsel is unable to obtain. So far as appears, therefore, there is no basis for the order. It was not predicated upon the pleadings or the testimony taken during the trial, if a trial were entered upon. From the affidavit of - counsel it would seem that the trial had been begun, at least to the extent of selecting a jury. The trial justice could not, without any papers before him showing that the trial would necessitate the examination of a long account, and- that it would not involve,any. difficult questions of law, refer the issues, If that fact appeared, from the pleadings, admissions of counsel, or the testimony taken upon the trial, then the order should specify that the pleadings, admissions and testimony were considered and from them the court1 had. reached the .conclusion that the case was a proper one-to be referred. The appellant’s counsel endeavored to have the order resettled so that, it should contain a recital' of the1 papers considered by the judge in referring the issues, but his efforts in this direction were unavailing, as were also his efforts to have the order vacated as irregular, in that it did not contain such recitals. The two latter orders, therefore, would seem to be an adjudication that no papers or testimony were considered. Obviously an order of reference made in that way cannot be permitted to stand. Tam of the-opinion that the order of reference should be vacated, there being no basis for it. The order of reference being vacated, the other two appeals fail; but inasmuch as the appellant was put to the expense of taking-the appeals, I think he should be allowed ten dollars costs and disbursements iii each case. ■ The order directing a-reference is reversed, with ten dollars costs and disbursements, and appellant is allowed ten dollars costs and disbursements in each of the other appeals. Ingraham, P. J., Clarke, Miller and Dowling, JJ., concurred. Order of reference reversed, with ten dollars costs and disbursements; other appeals dismissed, with ten dollarscosts and disbursements in each case to appellant.' '