
    WILLIAM H. RUTTY, Appellant, v. AUGUSTINE E. PERSON, et al., Respondents.
    
      Special issues—when motion for premature—when not granted.—Reference by the court.
    
    An order requiring that the special issues be framed and tried by jury, will be reversed on appeal where it appears that the motion was noticed before the plaintiff’s time to reply or demur to the counter-claim set up in the answer had expired.
    Though the granting of such a motion in a proper case is in the discretion of the court, yet where it appears that the issues as framed are so minute and numerous, and so grouped that confusion and mistake by a jury may be expected, the appellate court will reverse the order.
    At any stage of an equity case to be tried by the court without a jury, when it, becomes manifest that a reference will serve the ends of justice, the court will order one.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    
      Decided February 5, 1883.
    Appeal by plaintiff from order granting motion by defendant that special issues be framed and tried by jury. The complaint prayed for an accounting
    The answer was served November 25, 1882, and contained a counter-claim. The notice of motion to settle issues was served November 25, 1882, upon the same day as the service of the answer and before the reply was served; but the pleadings, including the reply, were before the court on the hearing of the motion.
    Further facts appear in the opinion.
    
      Eugene H. Pomeroy, for appellant.
    
      Ludlow Fowler, for respondents.
   By the Court.—Sedgwick, Ch. J.

—In the first appeal the order below must be reversed on the ground, that the motion was made before the time to reply or to demur to the counter-claim had expired. It is expedient to hold to the practice of having all the issues in the action joined before noticing such a motion.

The merits of the motion, however, call for some observations. The complaint and answer show that the issues of fact do not relate to a few differences of controlling importance % but in respect to what was the agreement of the parties, each side averring an agreement consisting of many details and provisions, and modified from time to time. In my judgment, no special issues could be framed, the verdict as to which by a jury would be of special benefit in arriving at a judgment as to the rights of the parties. The issues that were framed are so minute and numerous, yet grouped under questions twenty-seven in number, that confusion and mistake by a jury may be expected. Under the pleadings and proofs, a court or referee, by protracted attention, might find the plaintiff right in part and the defendant right in part, discriminating between material and immaterial allegations, rejecting surplusage, and considering the pleadings as amended in the proper exigencies. But the special issues are to be propounded to the jury as if they were to. answer Yes or No each question. Perhaps they would have power to answer each question partly Yes, and partly No. It would seem impracticable to obtain from the twelve men a unanimous consent to each of these possible modifications and limitations.

I am therefore of opinion, that it appeared to be a case where special issues should not be framed for a jury.

The order appealed from should be reversed, with $10 costs.

Appeal by plaintiff from order denying his motion, that a referee be appointed to hear and determine.

As to the second appeal, which was from an order denying plaintiff’s motion for a reference, I am of opinion that the court properly exercised its discretion. At any stage in the case, as it is an equity case to be tried by the court without a jury, when it becomes manifest that a reference will serve the ends of justice, the court will direct one. At present, it is expedient that more light should be had as to what is proper to -be tried by- the court and what by a referee.

The order is affirmed, with $10 costs.

Truax and O’Gorman, JJ., concurred.  