Mason and Richardson agt. Lee. Saratoga Special Term, June, 1862. APPLICATION to vacate an order staying proceedings in supplementary proceedings before a referee. BOCKES, Justice. On the 17th May, 1862, I granted an order in proceedings supplementary to execution, in these causes, requiring the defendant Lee to appear before Mr. Catlin, to be examined in regard to his property. This order was made returnable May 24th. On the 23d May, and on the affidavit of Mr. Lee's attorney, I granted an order staying proceedings for twenty days, except that the referee was allowed to adjourn the proceedings and examination to a time and place to be fixed by him. This stay was allowed on the facts stated in the affidavit, that Lee was then laboring under great mental excitement, to an extent to render him incompetent at times to transact business; that his mind was at times wandering, and his memory impaired; and that, in the opinion of the affiant, his mental condition was such that an examination would seriously affect his health, both mental and physical. It appears that the referee adjourned the examination to the 3d June, instant, and I am now asked to vacate the order staying the proceedings before him. I am therefore led to an examination of the practice proper to be adopted in such case. An affidavit is presented, intended to show that Lee is well able to be examined; and further, it is urged that the stay is merely for delay, and is productive of probable injurious consequences to the plaintiffs. But I think the question of practice may be determined without any reference to the facts stated in the plaintiffs' affidavit, although, perhaps, the order might be of doubtful propriety, if the application to vacate was made to stand on the case as made by the papers. After a careful examination, I am satisfied the order staying proceedings was improvidently granted. The ques Mason and Richardson agt. Lee. tion whether the party is able to submit to an examination, is for the referee, and it is not to be presumed that he will act oppressively or with cruelty. He is supposed to stand impartially between the parties, and if he should conduct otherwise than with entire fairness, would be removed at once, on proper application. As regards a postponement of the examination for any reason whatever, he must be deemed to occupy the same position as if the proceeding was before the judge, and the application was made to him. A liberal indulgence should generally be extended, especially if no injury would be occasioned by the delay; and especially should this be the case, if there is a reasonable apprehension of danger to the health of the party to be examined. Ill health or extreme mental excitement is good ground for postponing the examination, and a judge or referee will never put a party in peril by compelling an examination under circumstances of danger to health or intellect. In this regard the examination should not be inquisitorial. The question is, however, for the judge or referee before whom the examination is to be conducted. But it may be asked, what shall a party do in case the referee is unjustly arbitrary, and refuses a postponement when a clear and undoubted case is made for an adjournment? It is not probable that such case will often occur. I can hardly conceive that it will ever happen. But if it should, it is quite probable that the party would be justified in withdrawing, leaving the other party to apply for an order to punish the disobedience, when the case would be examined, and if the insubordination should appear unwarrantable, punishment would of course follow. It will be presumed, as a general rule, that the determination of the referee is correct, and the party who should refuse obedience to his requirements would be called on to make a very clear case, or he would be adjudged in contempt. Entertaining these views, it is apparent that I ought to Norton agt. Cary. vacate the order staying proceedings, and leave the matter to the referee. He will be, I have no doubt, fair and just in his action, and liberal in granting a postponement, if there be any just ground for the application. At the same time he should see to it that no delay be extended, unless the circumstances are such as to imperatively demand it. SUPREME COURT. NORTON agt. CARY & SALISBURY. It is now well settled upon authority, that in an action on contract, where the damages sought to be recovered are unliquidated, or are incapable of being reduced to certainty by mere calculation from the elements which the agreement contains, the summons should be issued under subdivision 2 of section 129 of the Code. And where one or more causes of action arising on contract are properly united in the complaint under section 167, a part of which are for liquidated, and the remainder for unliquidated damages, the summons must be issued under subdivision 2, section 129. Saratoga Special Term, August 5, 1862. MOTION to set aside the complaint on the ground of variance or departure from the summons. S. H. JOHNSON, for plaintiff. BOCKES, Justice. The summons is framed under subdivision 1 of section 129 of the Code, which must be followed by a complaint in an action arising on contract for the recovery of money only. The complaint contains two counts or separate causes of action, both founded on contract. The first charges an indebtedness of $292.22 against the defendants for lumber sold by them, as plaintiff's agents or consignees; the second sets up a contract between the parties by which, as is Norton agt. Cary. alleged, the defendants agreed to receive lumber from the plaintiff on consignment, and to dock, store, insure and sell the same, and make advances to the plaintiff thereon. And it is charged that although the plaintiff performed the agreement on his part, yet the defendants refused to receive the lumber, or in any way to perform on their part, whereby the plaintiff was damaged two thousand dollars. As regards the last count, the complaint is not in conformity with the summons, if we regard the decision in Cobb agt. Dunkin, (19 How., 164,) and in Tuttle agt. Smith, (14 How., 395,) as binding. These are general term decisions, in the latter of which we have an elaborate and very satisfactory opinion by Mr. Justice EмOTT. For myself, I am entirely satisfied to adopt his reasoning and conclusion. (See also, 14 How., 454.) It must now be deemed settled on authority, that in an action on contract, where the damages sought to be recovered are unliquidated, or are incapable of being reduced to certainty by mere calculation from the elements which the agreement contains, the summons should be framed under subdivision 2 of section 129. It is said that this construction will prevent a joinder of causes of action, as authorized by section 167. But this result does not follow. The plaintiff may unite in the same complaint several causes of action, when they all arise out of contract express or implied; but if under either count, unliquidated damages are sought to be recovered, the summons in the action should be framed under subdivision 2 of section 129. The summons will issue pursuant to subdivision 1, in case the action be on contract and be exclusively or only for the recovery of a definite sum or definite sums of money as such, and without calling upon the court to ascertain or adjudge anything but the existence and terms of the contract by which it is due. "In other actions" the summons will issue pursuant to subdivision 2--among which "other actions" will fall those on contract wherein the plaintiff unites in the same complaint several causes of Norton agt. Cary. action, some of which are by the contract, for a fixed and definite sum, and others for unliquidated damages. Thus construed, sections 129 and 167 are in entire harmony. If the action be on promissory note or money bond, or on both, or on several promissory notes, or on several money bonds, the summons should issue pursuant to subdivision 1. If on promissory note or money bond, and also by separate count to recover unliquidated damages for breach of contract, it should issue pursuant to subdivision 2; for in the latter case the action being for a fixed sum, and also for unliquidated damages, is not embraced in the class designated in subdivision 1; which, according to the decisions cited, applies only and exclusively to actions on contract for the recovery of a sum made certain by the contract or contracts counted on. In this case, the plaintiff has united in his complaint two causes of action, both arising out of contract; one of which is for the recovery of a sum made definite by the terms of the alleged agreement; the other for unliquidated damages. The action is for these two causes; and inasmuch as unliquidated damages are sought to be recovered, it is an action other than those specified in subdivision 1, as construed and limited by the decision in Tuttle agt. Smith. There is no misjoinder of causes of action. The plaintiff was authorized by section 167, to unite them in the same complaint, inasmuch as each is a cause of action arising out of contract; but in such case, one being for the recovery of liquidated, and the other for unliquidated damages, the summons should have been framed under subdivision 2. It is suggested that both causes of action arise out of the same transaction. It does not so appear from the complaint, and the pleading must control in this regard. But suppose they do so arise; or suppose the complaint was in a narrative form, stating the facts in detail, and showing a claim or indebtedness for $292.22 for lumber sold, and also a large claim for damages under the same contract for not |