Nina Jordan and Louise P. Jordan, Respondents, v. Edward C. Underhill, Appellant

Nina Jordan and Louise P. Jordan, Respondents, v. Edward C. Underhill, Appellant. Reference of all the issues in an action for an accounting — it is impt'oper until the right to an accounting is determined by an interlocutory judgment. In an action brought for an accounting on the part of the defendant, who had been acting as agent and quasi trustee for the plaintiffs in reference to certain moneys and securities and the investment and reinvestment of the same and the collection of the interest thereon, the defendant interposed ah answer alleging, among other defenses, that prior to the commencement of the action he had commenced an action against the plaintiffs for the purpose of obtaining a. determination as to the value of the services rendered to the plaintiffs as their agent. Held, that a reference to take and state the accounts of the parties could not be ordered until after it had been determined by the interlocutory judgment that the plaintiffs were entitled to such an accounting, and that, for this reason, the court had no power to order a reference of all the issues in the action. Appeal by the defendant, Edward C. Underhill, 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 4th day of March, 1902, referring the issues in the action to a. referee to hear and determine. J. Alexander Koones, for the appellant. Joseph G. Deane, for the respondents. [MAJORITY — Van Brunt, P. J.:] Van Brunt, P. J.: This action was brought for an accounting upon the part of the-defendant, who had been acting as agent and quasi trustee for the plaintiffs, in reference to certain moneys and securities and the investment and reinvestment of the same, and the collection of the interest thereon. The defendant answered, and among other defenses set up the facts that prior to-tlie commencement of this action he had commenced an action against the plaintiffs for the purpose of having fixed the value of the services rendered to the plaintiffs as their agent and alleging many of the facts contained iii the plaintiffs’ complaint herein. In this condition of the pleadings, a motion-was made for a reference which was granted. We think this was error. A reference could only be ordered to take and state the accounts between these parties after it had been determined by an .interlocutory judgment that the plaintiffs were entitled to an accounting. That had to be determined upon the trial of the issues raised by the pleadings. Upon that trial the .defendant would have a right to present the fact of a prior action as an answer to the claim for relief in this action. If the plaintiffs establish their right to an accounting, an interlocutory judgment adjudging this fact should be entered, which judgment should direct the accounting to proceed before a referee to be therein named. Until this question of the right to an accounting had been determined, there was no power in the court to refer. A reference of all the issues, therefore, was improper, and the order appealed from must be reversed, with ten dollars costs and disbursements and the motion denied, with ten dollars costs. Ingbaham, McLaughlin and Hatch, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.