Edward B. Cuthbert and Others, Respondents, v. Stilson Hutchins, Appellant

Edward B. Cuthbert and Others, Respondents, v. Stilson Hutchins, Appellant. ■Beferenee — thepleadings should be considered before granting it—costsof themotiozii should abide the event. An order of reference should not he granted without an inspection of the pleadings by the court, especially where the affidavit upon which the motion for a. reference is made does not clearly disclose the nature of the action or of the defense. Where a reference is granted costs of the motion therefor should abide the event. Appeal by the defendant, Stilson Hutchins, 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 22d day of May, 1896, directing a compulsory reference to hear, try and determine the action. The pleadings were not before the court when the order was made. The only paper upon which the order was based was an affidavit, made by one of the plaintiffs, wherein it was stated that the action was brought to recover $8,375.56 and interest; that such indebtedness arose by and between the plaintiffs and the defendant by reason of the defendant employing the plaintiffs as brokers, and because of the purchase and sale by the plaintiffs on account of the defendant, and at his request, of stocks, grains and cotton; that issue had been joined by the service of the defendant’s answer,, setting up a denial of the plaintiffs’ cause of action, and alleging and setting forth a counterclaim for $6,413.56, and that the trial of the issue would require the examination of a long account on the side of the plaintiffs, or both parties, consisting on the side of the plaintiffs of about ninety-four items of charges of various .dates and extending over a period from January 8 to August 8, 1895.- There were no opposing papers, but the defendant objected to the order. In addition to the usual provisions in an order of reference, the order also provided that the hearing might be brought on upon two days’ written notice, that the referee should proceed from day to day,.' unless, for good cause shown, he should in his discretion grant an adjournment, and that if an accounting was necessary the referee should proceed to take and state the same, and might compel the production of the necessary books and papers as fully as the court might dó and award final judgment to be entered, and that the defendant pay the plaintiffs ten dollars costs of motion. Eugene G. Kremer, for the appellant. E. H. Ball, for the respondents. [MAJORITY — Williams, J.:] Williams, J.: The order should not have been granted without an inspection of the pleadings. The court should have known precisely what the issues involved in the action and necessary to be tried Were. The affidavit made by one of the plaintiffs, and upon which alone this order was made, did not clearly and definitely disclose the nature of the cause of action or defense. The' court might infer something as to the issues from the affidavit, but it should not have been left to inference. When the right of the defendant to a trial by jury was or might have been involved, the court should have been clearly satisfied that the issues were such as that the right to compel a reference existed before making the order. We are not inclined to encourage this careless kind of practice. Moreover, the court upon this affidavit had no power to deprive the defendant of the usual notice of trial and require him to go to trial upon a notice of two days; and the very terms of the order itself implied a doubt as to whether an accounting would be necessary by providing that if an accounting became necessary the referee should take the same. Neither was there, any basis in the papers for compelling the defendant to pay the plaintiffs ten dollars costs of the motion. At most, these costs should have been made to abide event.. The order appealed from should be reversed, with costs to the appellant of the appeal, and the motion denied, with ten dollars costs. Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.