Streat v. Rothschild
New York Court of Common Pleas
Appeal from an order of reference. The action was brought for an accounting between partners. The defendants answered separately, admitting the partnership agreement and business under it. The defendant Rothschild alleged a release under seal, and the other defendant payment of all sums due the plaintiff. The plaintiff moved for a reference, and his motion was granted. From the order of reference the defendants appealed.
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Appeal from an order of reference. The action was brought for an accounting between partners. The defendants answered separately, admitting the partnership agreement and business under it. The defendant Rothschild alleged a release under seal, and the other defendant payment of all sums due the plaintiff. The plaintiff moved for a reference, and his motion was granted. From the order of reference the defendants appealed. It is only where “ the trial of the issues of fact” requires the examination of a long account that the issues can be referred without consent (Code Civ. Pro. § 1013). The…
1Opinion of the CourtBeach, J.
[After stating the facts as above.]—This is an action in equity, for trial by the court without a jury. A compulsory reference, however, cannot be ordered, unless the examination of a long account on either side will be required, and the decision of difficult questions of law will not be called for (Code Civ. Pro. § 1013; Camp v, Ingersoll, 86 N.Y. 433).
Although there may be some uncertainty in applying the numerous adjudications upon this subject, I think a proper construction is adverse to the power of the court to direct a compulsory reference unless the trial of the issue will necessitate…
2Cases cited4 opinions
- Camp v. . IngersollNew York Court of Appeals · 1881
- Welsh v. . DarraghNew York Court of Appeals · 1873
- Townsend v. HendricksNew York Court of Appeals · 1870
- Turner v. TaylorNew York Court of Common Pleas · 1867
3Cited by3 opinions
- Smith v. Ohio Millers Mutual Fire InsuranceSupreme Court of Missouri · 1928
- Doyle v. Metropolitan Elevated RailroadNew York Court of Common Pleas · 1892
- Reiser v. PlathNew York Court of Common Pleas · 1891