
    RUTTY v. PERSON.
    
      New York Superior Court; General Term,
    
      January, 1883.
    Action fob Re-settlement of Partnership Accounts.—Special OR FEIGNED ISSUES, WHERE FRAMED.—REFERENCE IN Partnership Case, when proper.
    
      It seems, that the time to make .a motion for the trial of special (formerly called feigned) issues in an action not triable by jury, as of strict right, and where there is a counter-claim interposed, begins to run after the service of the reply, even though the issue raised by the counter-claim, is not to be so tried.
    Difficult, numerous and complicated special issues should not be sent to a jury for trial, in a case triable by the court.
    In an action to open accounts and for an accounting between alleged copartners, where there was an issue as to the partnership, and the defense of an account stated and settled, the court at special term . refused to refer the trial of the action to a referee. On appeal,— Held, no error; and that the court properly exercised its discretion in refusing to refer the action, until it became manifest that a reference would serve the ends of justice.
    The plaintiff Rutty appealed from an order made at special term by Abnoijx, J., directing that certain special issues be framed, and as framed be tried by a jury, and appealed separately from an order made by the same judge refusing to refer the issue for trial by a referee. Both appeals were heard at the same. time. The action was brought by the plaintiff who alleged that he was at a stated time a copartner of the defendants, A. Person, Harriman & Co., and that he had never received the proper account from defendants of the joint dealings, by reason of certain errors and discrepancies in those statements of such dealings which had been furnished to plaintiff by 'the defendants. The plaintiff prayed an account, and that the statements rendered might be disregarded or opened. On November 35, 1883, the defendants served their answer denying an intention to form a partnership with plaintiff, and setting up their version of the agreement, claiming that the plaintiff was defendants’ employee in regard to the matters complained of, but conceding that he had an interest in the profits of a joint venture in the importation of kid gloves from Europe to America; the defendants also pleaded an account stated and settled, and specially a composition of all differences in regard to the accounts, in consideration of which the defendants had allowed to plaintiff $30,500. The defendants claimed that this sum must be paid back before the accounts could be opened. The answer likewise interposed a counter-claim alleging that, as the defendants believed the plaintiff was not a copartner and therefore not chargeable with losses, they had not charged his account with his proper share of a loss on one consignment account, amounting to $30,000. The defendants prayed that, in case the accounts should be opened, then they be corrected to this extent only, as in all other respects they were just and true. On the same day, but a few hours after the service of the •answer, the defendants served a notice of motion for •an order directing certain special issues annexed to the notice to be framed and tried by a jury.
    
      On November 28,1882, the plaintiff served his reply to the counter-claim, and on November 29, 1882, procured an order to show cause why the action should not be referred as involving the examination of a long account. Both motions were heard on all the pleadings, including the reply. The court at special term granted the defendants’ motion for the trial by jury of special issues as to the nature of the agreement, and to inquire whether an account had been stated and settled, and refused the plaintiff’s motion to refer the issues for trial by a referee. From the orders made on both motions the plaintiff appealed to the general term of the superior court.
    
      Eugene H. Pomeroy (John E. Eustis, attorney), for appellant.
    I. The defendants’ motion for special issues was served before the service of the plaintiff’s reply to the defendants’ counterclaim and was therefore premature (Rules of Court, 31 ; O’Brien v. Bowes, 10 Abb. Pr. 106).
    . II. The action is of a purely equitable nature, and is not triable by the jury (Tovrey v. Twombley, 57 How. Pr. 149 ; Covert v. Henneberger, 53 Id. 1; Colman v. Dixon, 50 N. Y. 572).
    III. Although the right to order special issues in an equitable case is a matter within the judge’s discretion yet the proper exercise of that discretion is reviewable at general term. Martin v. Windsor Hotel Co., 70 N. Y. 103, where it is said “ whether the parties should have the controversy determined by one tribunal or the other was a matter of substance and hence appealable” (Alling v. Fahy, 70 N. Y. 571; Howell v. Mills, 53 Id. 322).
    IV. Even if the mode of trial is within the discretion of the court, such discretion has been abitrarily exercised and should not be sustained. The questions submitted to the jury are not susceptible of being answered “yes” or “no.” The questions are complex, intricate and incomprehensible without careful analysis. For these reasons the motion for jury issues was not properly granted.
    V. Upon the appeal from the order refusing to refer, the appellant submitted that the case involved the examination of a long account (Whitaker v. Desfosse, 7 Bosw. 678, 681). Even though there are facts in issue preliminary to the taking of the account, yet the case was referable (Vanzant v. Cobb, 10 How. Pr. 348 ; Bachelor v. Albany City Ins. Co., 6 Abb. Pr. N. S. 240 ; Mills v. Thursby, 11 How. Pr. 113 ; Thurber v. Chambers, 4 Hun, 721, 727; affd. in 66 N. Y. 421).
    
      Robert Ludlow Fowler (Kobbe & Fowler, attorneys), for respondents.
    I. The motion to frame issues was heard on the reply, and it was immaterial when it was served. But as an abstract question, in moving after service of the answer and before the service of the reply, for an order requiring certain issues to be framed and tried by jury, the defendants followed the course which the law indicated. General Buie of Court 31, directs that such motion be made within ten days after issue joined. By § 964, Code Civ. Pro., issue was joined as to the affirmative issues of the complaint by service of the answer. Defendants did not desire the counterclaim tried by jury, nor could it have been so tried, as its existence depended upon the result of the jury issues.
    II. Even if the General Buie of Court No. 31 is susceptible of any other construction, it is directory only, and the court might disregard-the direction. Buies of court'are statutes passed in the indirect legislative mode. (1 Austin's Jurispr. [Campbell’s ed.] p. 140; Holland's Form of the Law, 56). Directory statutes need not be precisely complied with ,(U. S. Trust Co. v. U. S. Fire Ins. Co., 18 N. Y. 199, 220). -The court of its own motion might order special issues at any stage of the case (Church v. Freeman, 16 How, Pr. 294 ; Paul v. Parshall, 14 Abb. Pr. N. S. 138; S. C., 1 Buff. Super. Ct. [Sheldon] 297). No unnecessary limitation of this power should be inferred.
    III. Orders directing special issues in an equity case are not appealable (Wood v. Mayor, &c. of N. Y., 4 Abb. Pr. N. S. 152; Paul v. Parshall, [above cited] Clark v. Brooks, 2 Abb. Pr. N. S. 385,406). No purely discretionary order is appealable (Ludlow v. American Exchange Nat. Bank, 59 Barb. 509). The order directing special issues to be tried by a jury is wholly discretionary (Vermilyea v. Palmer, 52 N. Y. 471; Birdsall v. Patterson, 51 Id. 43).
    IV. It was according to precedent to grant issues for trial by jury in a case for an accounting between alleged copartners, where there is an issue as to partnership or as to any material fact (Peacock v. Peacock, 16 Ves. 49, 52 ; Webster v. Bray, 7 Hare, 159, 165; Black v. Lamb, 1 Beasley, 108, 115; Clark v. Brooks, 26 How, Pr. 285; Wood v. Mayor, &c. of N. Y., 3 Abb. Pr. N. S. 467; Cocke v. Upshaw, 6 Munf. (Va.) 464; Drope v. Miller, 1 Hempstead, 49, 50), especially in a case like this, where the plaintiff should be subjected to orossexamination before accounts are opened (Fisher v. Porch, 2 Stockt. Ch. [N. J.] 243).
    V. Upon the appeal from the order refusing to refer, the defendants submitted that the action, though an action for an account was, on the face of the pleadings, in reality not referable under the statute, as the account was not long (Kain v. Delano, 11 Abb. Pr. N. S. 29). An action for an original account is triable by the court, and the plaintiff can not try in this action any other issue (Weeks v. Hoyt, 5 Hun, 347). The taking of the account would be subsequent to the trial (Code Civ. Pro„ § 1015 ; Camp v. lngersoll, 86 N. Y. 433, 437). But if the action is regarded as one to open an account, the plaintiff by his allegations attacks only five items, and lie must be confined to these on the trial (Story's Eg. PI. § 800 ; Parkinson v. Hanbury, L. R. 2 Ho. L. 1; Weed v. Smull, 7 Paige, 573 ; Barker v. Hoff, 7 Hun, 284 ; Chubbuck v. Vernam, 42 N. Y. 432). Now, five ' items do not constitute a long account (Dickinson v. Mitchell, 19 Abb. Pr. 286), nor because the action involves figures and accounts is it necessarily referable (Evans v. Kalbfleisch, 16 Abb. Pr. N. S. 13; S. C., 36 Super. Ct. [J. & S.) 450, 458). The action involves the trial of difficult questions of law and is not referable on that ground (Code Civ. Pro. § 1013; Barnes v. West, 16 Hun, 68 ; Dane v. Liverpool, &c. Ins. Co., 21 Hun, 259), and the court has no inherent power to refer such a cause (Camp v. Ingersoll, 86 N. Y. 433). Even if the cause were referable, it was discretionary with the court below to refer or not as the power to refer, in a proper case, is permissive only (Goodyear v. Brooks, 2 Abb. Pr. N. S., 296 ; S. C., 4 Rob. 682; Wheeler v. Falconer, 7 Rob. 45, 47). The order refusing to refer- is not appealable (Id. sup.). In any event there should be no reference in this case until the plaintiff establishes his right to an account.
    
      
       As to what cases are thus triable, see p. of this volume.
      The equity practice as to framing issues for trial was thus clearly stated by Chief Justice Gray in the recent case of Dorr v. Tremont Nat. Bk., 128 Mass. 349; with which the reader should compare §§ 970, 971 of Code Civ. Pro., which will be found on page of this volume.
      Gray, Oh. J. (128 Mass. p. 857):—“In the practice of this court, issues to a jury in equity or probate causes have commonly been framed in one of three forms:
      
        “First. By directing the parties to plead to issue, and submitting to the jury the issue joined oh their pleadings, in accordance with the former practice in England „and New York. Seton on Deerees (3d. ed.), 984; Frank v. Frank, 2 Mood. & Rob. 314; Phillips v. Thompson, 1 Johns. Ch. 131, 152; Phelps v. Hartwell, 1 Mass. 71; Crowninshield v. Crowninshield, 2 Gray, 524; Hodges v. Pingree, 2 Chit. Pl. (16th Am. ed.) 127, 128; S. C., 108 Mass. 585; Briggs v. Titcomb, Suffolk, April Term, 1865, in which the issues on file are in the handwriting of Chief Justice Bigelow.
      “ Second. By reciting in the order that the one party alleges and the other denies, and directing the issue made by such allegation and denial to be tried by a jury, in substantial accordance with the form of a feigned issue, given in the St. of 8 and 9 Viet. c. 109, § 19, and with the order in this case, and usually in this form: “ Whereas the plaintiff'alleges, and the defendant denies, (stating the question in dispute) now, therefore, it is ordered that a jury be empanelled to try said issues.” Instances of such orders made by Chief Justice Chapman are upon the files of the court in the suit in equity oi Vinton v. Simmons, and in the probate appeal of Winslow v. Coates, Suffolk, April Term, 1870.
      “ Third. By directing an issue framed in the form of a simple question, and recited in the order, to be tried by a jury. This mode of framing issues has been long used in this commonwealth, and in some counties almost exclusively used. Eames v. Eames, Middlesex Rec. 1835, fol. 139; S. C., 16 Pick. 141; Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 297-299; Barker v. Comins, 110 Mass. 477 .... in the present case the issue to be tried was not only directed, but framed, and no more formal issue was necessary.”"
    
   Sedgwick, 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 counterclaim 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 proved, 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 proved 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’s right in part and the defendants 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 to 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 answer 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.

Truax and O’Gorman, JJ., concurred.

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.  