
    Brown et al. v. Brown et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    1. Partition—Trial by Jury.
    Code Civil Proc. § 1544, which provides that an issue of fact in a partition case shall be triable by a jury, applies only to issues of fact denying plaintiff’s right to maintain the action, and not to issues involving long accounts between the co-tenants, arising from a contract among them to improve the land and share the expense in the ratio of their respective interests, and such issues may be tried by a referee.
    2. Same—Account Stated.
    The accounts between the co-tenants would notbecome accounts stated by a clause in the agreement referring to the cost of the land and improvements, and the amounts thereof paid by each party as appearing on plaintiff’s account books, such an admission being only prima facie evidence of the correctness of the accounts.
    
      3. Jury Trial—Waiver.
    Noticing an action for trial at special term is not a waiver by the moving party of the right of trial by jury, that not being one of the modes enumerated in Code Civil Proc. § 1009.
    Appeal from special term, Hew York county.
    Action by John Brown and others against Alice Brown and others for partition of land and an account of moneys advanced in the improvement thereof. On motion of defendants an order of reference was entered from which plaintiffs appeal.
    Argued before Daniels, P. J., and Bartlett, J.
    
      Artemus B. Smith, for appellants. James W. MeElhinney, for respondents.
   Bartlett, J.

By its terms the order from which the plaintiffs have appealed refers this action, and all the issues herein, to a referee to hear and determine the same. The appellants insist that they are entitled to a trial by jury. This view could hardly have been entertained at the time the motion for a reference was argued; for one of the plaintiffs, in an affidavit read in opposition to that motion, stated that the case had been noticed by his attorneys for trial at special term, and that he desired and intended to have the cause duly placed upon the special term calendar, and brought to trial in its order. More than this was requisite, however, to constitute a waiver of the right to a jury trial, (Code Civil Proc. § 1009,) and we must therefore inquire whether the plaintiffs were entitled to such a trial under the pleadings. Section 1544 of the Code of Civil Procedure provides that an issue of fact joined in an action for partition is triable by a jury. The issues of fact to which this provision relates are only such as involve the maintenance of the action. It has no application unless some defense is interposed which, if successful, would prevent any partition at all. Such a defense, for example, would be a denial of the plaintiffs’ title, or a denial that the parties were joint tenants or tenants in common. But in a ease like the present, where both parties pray fora partition, and where there is no dispute as to their proportionate interests, but the only matters in controversy relate directly or indirectly to the amounts with which the respective shares are chargeable, neither party is entitled tó a trial by jury as a matter of right; and, if the trial will require the examination of a long account on either side, the action may properly be referred.

I am satisfied that the examination of a long account will necessarily be involved. An agreement is attached to the complaint embodying an arrangement into which the parties entered for the improvement of the land now sought to be partitioned, and the erection of houses thereon. It provided that the plaintiff John Brown should have an interest of two undivided fifths in said property, the plaintiff James Lamb one undivided fifth, and the defendant Alice Brown two undivided fifths, “ upon his and her each paying his or her like proportion of the costs of said lands, and of all improvements thereon.” Each of the parties also agreed to furnish his and her full share of the moneys required for the purposes aforesaid in proportion to his and her interest in said lands and anyone who furnished less-than his or her full proportionate share was to be chargeable with, and to pay interest on, such de; ficieney to those who furnished the necessary moneys. The erection of the buildings was to be superintended by the plaintiff John Brown, and upon the sale of the land and buildings, or any portions thereof, the parties were to share the profits or losses of the undertaking in proportion to their respective interests in the land. The plaintiffs, in their complaint, expressly demand that an account may be taken of all the dealings and transactions of the parties to the said agreement, and an account of the amounts contributed, received, and paid by the said parties thereto, respectively; and the defendant Alice Brown, in her answer, prays that the plaintiff John Brown may be ordered to file and render a verified account of his proceedings in relation to the matters and things set forth in the complaint, and that said account be passed, stated, and allowed by this court, or a referee to be appointed herein. It will be seen, therefore, that the parties agree as to the necessity of an accounting, and it is evident that the true condition of the accounts between the parties is one of the main questions arising in the case, although other issues may be involved. Under these circumstances an order of reference is proper. Genet v. Canal Co., 12 Civil Proc. R. 448. But the appellants contend that whatever accounts existed between the parties have become stated by virtue of a clause in the agreement between them which declares “that the accounts of the cost of said lands, the costs of the improvements thereon, and the expenses connected therewith, and also the accounts of money furnished by each of them ” for the purposes of the agreement are stated in and appear upon the books of account of the plaintiffs’ firm. I do not think this clause in the agreement was intended to be a conclusive admission of the correctness of the accounts as contained in the books of the plaintiffs’ firm so as to preclude the defendants from alleging and proving them to be erroneous. It is rather to be regarded merely as a declaration that such accounts are prima facie correct, and it puts upon the defendants the burden of showing that they are not so. This seems to be a fair construction of its scope and meaning. The facts presented for the consideration of the court below showed that the case could be more suitably and satisfactorily tried before a referee than in any other way, and, as there was jurisdiction to make the order of reference, it should be affirmed, with costs.

Daniels, P. J., concurs.  