of the defendant to answer, where the summons was personally served. If judgment be for the defendant, upon an issue of law, and if taking of an account or the proof of any fact be necessary to enable the court to complete the judgment, a reference or assessment by jury may be ordered, as in that section provided. See note to § 246, ante.

CHAPTER V.

Trial by Referees.

SECTION 270. All issues referable by consent,

271. When a reference may be compulsorily ordered.
272. Mode of trial. Effect of report. Review.

273. Referees, how chosen.

$270. All issues referable by consent.

All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties.

a. Consent to refer.-An attorney retained to defend an action has an implied authority to consent to a reference (Smith v. Troup, 18 Law Jour. Rep. 290, C. P.) The consent should be "written." It may be written by the parties or their attorneys, or by the clerk entering their consent in the minutes, or by the referees in their minutes, such consent being made before them (Leaycroft v. Fowler, 7 How. 259; Waterman v. Waterman, 37 How. 36). But the necessity of a written consent to refer may be waived, and such waiver may be by parol, or by the parties proceeding with the reference (Keator v. Ulster Plank Road Co. 7 How. 41; see note to 8 Abb. 171).

b. In an action referable only by consent, a stipulation was signed by the attorneys of both parties, referring the cause to M., and an order was made on defendant's motion, and on filing the stipulation, referring it to I,-held that the plaintiff had a right to disregard the order entirely, and proceed as if no consent to any reference had been given (Haner v. Bliss, 7 How. 246).

c. A county court may when consent of the parties order a reference of an issue of fact, in an action brought into such court from a justice's court (Hyland v. Loomis, 48 Barb. 126).

271. (Am'd 1849.)

ordered.

When reference may be compulsorily

Where the parties do not consent, the court may upon the application of either, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases:

1. Where the trial of an issue of fact shall require the exam

ination of a long account on either side; in which case, the referees may be directed to hear and decide the whole issue, or to report upon any specific question of fact involved therein;

or,

2. Where the taking of an account shall be necessary for the information of the court, before judgment, or for carrying a judgment or order into effect; or,

3. Where a question of fact, other than upon the pleadings, shall arise, upon motion or otherwise, in any stage of the action.

Compulsory reference, in what cases.

a. Examination of long account.-The practice of referring issues which require the examination of long accounts has prevailed from time immemorial, and is consistent with the provision in the constitution retaining a trial by jury in all cases in which it had been theretofore used (Van Marter v. Hotchkiss, i Keyes, 585). The power to refer actions involving the examination of a long account is permissive merely (Goodyear v. Brooks, 4 Rob. 682), there is no absolute right to a reference merely because a long account is involved (Wheeler v. Falconer, 7 Rob. 45). The code requires (§ 271, subd. 2) that neither party should be deprived of the benefit of a trial by jury, as to matters not involved in the account and embraced in the issues (id.) The granting an order of reference on the ground of a long account, where other issues are involved, is not a matter of discretion (id.)

b. The revised statutes provided that whenever a cause should be at issue, and it should appear that the trial of the same would require the examination of a long account on either side, the court might, on the application of either party, or without such application, order such cause to be referred to three impartial and competent persons (2 R. S. 384, § 39). Under this provision, it was held, that a reference was strictly proper only in the cases of accounts existing between the parties; and that where there was no account, in the ordinary acceptation of the term, the cause could not be referred, although there might be many items of damage (6 Hill, 373). It was always regarded as a proceeding applicable only to what were formerly known as actions of assumpsit, or debt on simple contract, although it was held possible that a reference might be ordered in what was formerly known as an action of covenant (19 Wend. 108; 9 id. 480; 6 id. 503). An action upon a policy of insurance against fire was allowed to be referred, where the controversy between the parties related solely to items of injury, and the amount of loss sustained by the assured (1 Hall, 560). A reference is now refused in such an action, where the defense charges a fraud on the part of the insured (Levy v. Brooklyn Fire Ins. Co. 25 Wend. 687; Freeman v. Atlantic Mut. Ins. Co. 13 Abb. 124; Batchelor v. Albany Ins. Co. 6 Abb. N. Y. 240; 37 How. 399; but see contra, Lewis v. Irving Fire Ins. Co. 15 Abb. 303, note).

c. The class of actions in which the court can order the whole action to be tried by the referee, without the consent of either party, is enlarged by the code, but the fact which warrants the exercise of the power is the same now as when the revised statutes alone gave the authority to refer (McCullough v. Brodie, 13 How. 346; 6 Duer, 659; Cameron v. Freeman, 10 Abb. 332; 18 How. 310).

d. A reference can only be compelled where the court can see from the pleadings and proceedings that the trial must necessarily involve the examination of a long account on either side (Keeler v. Poughkeepsie Plank Road Co. 10 How. 11: Dickinson v. Mitchell, 19 Abb. 286; Sharp v. Mayor of N. Y. 18

How. 213; Cameron v. Freeman, 18 How. 310; 10 Abb. 332; Kennedy v. Shilton, 9 Abb. 157, note; 1 Hilton, 546). It is not enough that the examination of such an account may become important collaterally, for the purpose of establishing some other issue (id.) Thus where the necessity of examining a long account depends upon the decision of another issue in the action, as whether a partnership existed, a reference will not be ordered until that issue has been first tried (Graham v. Golding, 7 How. 260). But where the question whether there was a partnership or not could only be answered by first going into the accounts,-the plaintiff being entitled to be a partner on his bringing into the business a certain amount of capital, and he insisted that he had done so, and that the books show it,-there the reference was ordered (ib.; see Smith v. Dodd, 3 E. D. Smith, 348; Cameron v. Freeman, 18 How. 310). And when this question of partnership is so connected with the accounts of the firm that a full statement of the accounts will require an examination, there the cause should be referred (Mills v. Thursby, 11 How. 113; and see Palmer v. Palmer, 13 id. 363; Jackson v. De Forest, 14 id. 81; see, however, Cameron v. Freeman, 18 How. 310; Graham v. Golding, 7 How. 260).

a. A reference may be ordered in an action to recover back moneys alleged to have been fraudulently charged in an account between the parties (Sheldon v. Wood, 3 Sand. 739). But in an action to open stated accounts and for an accounting it is premature to apply for a reference until the question of the right to an accounting has been determined (Mitchell v. Stewart, 3 Abb. N. S. 250).

b. An action to recover compensation for indorsing notes for defendant's accommodation is properly referable, as requiring the examination of a long account, the case not involving any difficult question of law (Masterton v. Howell, 10 Abb. 118); and so is an action for breach of covenant to repair (Hatch v. Wolfe, 30 How. 65; 1 Abb. N. S. 77).

. One bill of goods, containing fifty items, delivered at one time, is in fact but one item (Swift v. Wells, How. 79; Miller v. Hooker, id. 171; Stewart v. Elwell, 3 Code R. 119; Harris v. Mead, 16 Abb. 257). Five items held not to constitute a long account (Dickinson v. Mitchell, 19 Abb 286); and so of four items (10 Wend. 577; see Harris v. Mead, 16 Abb. 257). Where the alleged long account consisted of the examination of items of damage sustained by the plaintiff by reason of the false representations of the defendants, which in duced the plaintiff to make certain outlays for establishing a soap factory, the motion was denied (McCullough v. Brodie, 13 How. 346; 6 Duer, 659).

d. Where a cause involves the examination of a long account, it is no sufficient objection to granting a motion for a reference that the cause has once been tried by a jury (Brown v. Bradshaw, 8 How. 176; 1 Duer, 635); or, the cause not being one triable by a jury, that either party intends to move to have issues framed to be tried by a jury (Goodyear v. Brooks, 4 Rob. 682; 2 Abb. N. S. 296); or that an order of arrest has been obtained in the action (Atocha v. Garcia, 15 Abb. 303). But the court has no authority to refer an action for goods sold, where the defendant offers to stipulate that upon the trial he will not dispute the items of the claim, either as to their number, character, or value (Seigel v. Heid, 36 How. 506).

e. Actions of tort are not referable (19 Wend. 108), nor are actions based on negligence; as the loss of goods by a common carrier (Warner v. West. Trans. Co. 3 Rob. 705; McMasters v. Booth, 4 How. 427); nor is an action to set aside a conveyance as fraudulent (Bushnell v. Eastman, 2 Abb. N. S. 411), or for damages occasioned by rioters (Ross v. Mayor of N. Y. 32 How. 164), or against a sheriff for a false return (Dewey v. Field, 13 How. 438). Where on an action to foreclose a chattel mortgage, the defense was that the mortgage was fraudulent, the reference was refused (Goodyear v. Brooks, 4 Rob. 682; 2 Abb. N. S. 296).

f. Cases within Subd. 2.-It seems there may be a reference of any specific question in any action where the taking of a long account is necessary

(Bowman v. Sheldon, 1 Duer, 607). Thus in an action by an attorney to recover compensation for services, there was on plaintiff's motion a reference to adjust the bills of costs sued upon (id.) A reference, without an action, will not be compelled in such a case (see Fox v. Fox, 24 How. 409). And where on a cause being submitted to the court, it appears that the plaintiff is entitled to have an account taken, but there are questions of fact material to the taking of the final account that must be settled by testimony, the cause will be referred to a referee, to find the facts upon the issues, and upon such finding to state the account between the parties (Van Zant v. Cobb, 10 How. 348). A reference was ordered at general term after a verdict subject to the opinion of the court to ascertain the amount of damages in an action on a policy of insurance (Woodruff v. Commercial Mut. Ins. Co. 2 Hilton, 130; and see Ehlen v. Rutger Fire Ins. Co. 6 Abb. 68).

a. Cases within subd. 3.—This subdivision is intended to provide for references in cases where questions of fact should arise, upon collateral matters in the cause, in any stage of it, and not to those questions or issues of fact which are made by the pleadings. * * As, for instance, whether an injunction has been violated, or the party is in contempt, for any cause alleged, the numerous questions which arise on motion, and in relation to the execution of the orders, decrees, and process of the court, and also upon petitions during the progress of a cause (Flagg v. Munger, 3 Barb. 9). A reference was ordered on a motion to discharge from arrest (Barron v. Sandford, 14 How. 443; 6 Abb. 320, note; Stelle v. Palmer, 7 Abb. 181). On a motion to satisfy a judgment (Meyer v. Lent, 7 Abb. 225; 16 Barb. 539; Pendleton v. Weed, 17 N. Y. 72), or to cancel a judgment entered on confession (Dwight v. St. John, 25 N. Y. 203). On a motion against an attorney for not paying moneys collected (Barber v. Case, 12 How. 351). On a motion to enter a docket secured on appeal (Munn v. Barnum, 2 Abb. 411); and on a motion to set aside a judgment against a lunatic (Demelt v. Leonard, 19 How. 140).

b. Special proceedings.-In a proceeding under the act to facilitate the closing up of insolvent and dissolved mutual insurance companies (Sands v. Tillinghast, 24 How. 435). To settle claims against executors (Coe v. Coe, 37 Barb. 232). A claim against a decedent's estate for a conversion of personal property by the decedent (Brockett v. Bush, 18 Abb. 337). To determine appeals from Commissioners of highways (The People v. Albright, 14 Abb. 305; The People v. Van Alstyne, 32 Barb. 131). To take an account on the dissolution of joint stock company (see Ketchum v. Clark, 22 Barb. 319; and 27 N. Y. 147). The statute of 1862, authorizing references of disputed claims by receivers of insurance companies is constitutional (27 N. Y. 147); it applies not only to actions pending when the law took effect, but to actions commenced subsequently (Sands v. Harvey, 19 Abb. 248; contra, Sands v. Birch, 19 Abb. 255).

c. Equity causes.—On the practice of referring causes equitable in their nature (see Elmore v. Thomas, 7 Abb. 70; McMahon v. Allen, 10 How. 384; Draper v. Day, 11 How. 439; Stevenson v. Buxton, 15 Abb. 352).

d. Order for reference.-An order for a reference must be made by the court; an order by a judge is not sufficient (Scudder v. Snow, 29 How. 96). A reference cannot be had without an order of the court. A referee who proceeds in a cause by virtue of an appointment by stipulation of the parties merely, acts without authority (Litchfield v. Burwell, 5 How. 341). But where on a written stipulation to refer to a referee named, upon which no order was entered, the cause was tried before such referee, a report was made, and judgment entered thereon, it was held that neither party could attack the judgment for defects in the appointment of the referee (Whalen v. Superv. of Albany, 6 How. 278; and Luddington v. Taft, 10 Barb. 448; 3 Abb. 168). [An order on the stipulation might in such a case be entered nunc pro tunc.] e. When order for reference to be applied for.-The order for reference cannot be applied for until after issue (3 Cow. 339), nor until the cause is ready for trial as to all the defendants (Hawkins v. Avery, 32 Barb.

551). Issue is joined immediately on the service of an answer not constituting a counter-claim, or on the service of a reply to a counter-claim. The making the motion need not be delayed to ascertain if either party intends to amend (Cusson v. Whalon, 1 Code Rep. N. S. 27; Enos v. Thomas, 2 Code Rep. 128). The neglect of the parties to move for a reference does not deprive the court of the power to order a reference (Church v. Freeman, 16 How. 297; O'Brien v. Bowes, 4 Bosw. 661). In a case where the propriety of a reference is disclosed on the trial, the cause may properly be withdrawn from the jury, but should be so altogether (Buchanan v. Cheesebrough, 5 Duer, 238). The right to move at a trial term for an order of reference can only exist when the cause is on the calendar ready for trial, and the object is to prevent the trial (Wheeler v. Falconer, 7 Rob. 48). A refusal of an application at trial term to refer a cause is an order although no formal order is entered, and such order is res judicata (id.)

a. Motion for reference, papers on.-Where parties do not consent, the reference is to be obtained by motion at special term. The motion is non-enumerated (Rule 40). It must be founded on affidavit. The affidavit need not state the place of trial named in the complaint (2 Cow. 448; 7 ib. 478). But must state that issue has been joined (2 Cow. 34); and that the trial of the action will require the examination of a long account, and not involve the examination of difficult questions of law; or that the reference is necessary to carry a judgment or order into effect. But where the pleadings verified show that the examination of a long account is involved in the case, a reference will be ordered, without any affidavit that a long account is involved (Holmes v. Bennett, 28 How. 289). The affidavit must be made by the party himself, and not by the attorney, unless a sufficient excuse for the omission is shown (Mesick v. Smith, 2 How. 7; Ross v. Beecher, ib. 157; Little v. Bigelow, ib. 164; Colton v. McCullough, ib. 165; 4 Hill, 548). The affidavit need not state that the investigation will not require the decision of difficult questions of law; that will be presumed, unless and until it is made to appear otherwise by the opposing affidavits (Barber v. Cromwell, 10 How. 351).

b. Cross-motion for reference. Joint reference.-Where both parties move for a reference, the motion of the party first giving notice is entitled to a preference (1 Wend. 15). And in cross-actions, where cross-applications are made for a reference, a joint reference will be ordered, and the referees authorized to hold their meetings so as to accommodate both parties (4 Wend. 198).

c. Opposing motion for reference.-In opposition to the motion, it may be shown, by affidavit, that difficult questions of law will arise (2 Johns. Cas. 402; 2 Caines, R. 251; 2 Johns. 374), as the party is advised by counsel, and verily believes (1 Caines, R. 149). And if it clearly appear, that difficult ques tions of law will arise, the motion will be denied (1 How. 168). But it is not enough to state, generally, that questions of law will arise; it must be made to appear to the court what the points of law are, so that it can judge whether they are material and difficult, and will necessarily arise. And the court must be satisfied that they will be questions of real difficulty (5 Cow. 423), otherwise the motion will be granted (Dewey v. Field, 13 How. 439). If the cause is not in readiness for trial as to all the defendants it is not referable, and the objection should be taken on the motion to refer, it cannot be taken afterwards (Hawkins v. Avery, 32 Barb. 551).

d. No appeal from order of reference.—In an action in which the court has power to order a reference, no appeal lies from an order ordering a reference (Gray v. Fox, 1 Code Rep. N. S. 334; Ubsdell v. Root, 3 Abb. 142; 1 Hilton, 173; Bryan v. Brennon, 7 How. 359; Smith v. Dodd, 3 E. D. Smith, 348; Kennedy v. Shilton, 9 Abb. 157 note; 1 Hilton, 546; The People v. Haus, 12 Abb. 204; Dean v. Empire State Mut. Ins. Co. 9 How. 69; see, however, Cram v. Bradford, 4 Abb. 201; Whitaker v..Desfosse, 7 Bosw. 678; Harris v. Mead, 16 Abb. 257). An order of reference on the ground that a long account is involved is not appealable (Hatch v. Wolf, 30 How. 65; 1 Abb. N. §.