
    JAMES J. BOSS and WILLIE M. ROSS, Plaintiffs and Respondents, v. JOHN COMBES, Defendant and Appellant.
    I. Reference of issues compulsory.
    1. What, not referable.
    
    
      a. An action to recover damages for the breach of a contract, is not.
    1. If such a cause of action is joined with a cause of action which is referable, neither of the causes of action can be referred, at least, not until after the non-referable cause of action has been disposed of by a jury, when possibly, the referable cause of action may be sent to a referee (See Evans v. Kalbfleisch, 36 IV. 7. 8upr. Ot. JR.).
    
    2. Appealability of order granting a reference.
    
    1. It is always appealable, for the power of the court to make the order is always involved.
    Before Monell, Ch. J., Curtis and Speir, JJ. -
    
      Decided May 2, 1874.
    Appeal by defendant from an order directing a reference to hear and determine all the issues.
    The action was upon a contract for the sale and delivery of a quantity of peaches, to be shipped and delivered by the plaintiff to the defendant, at a stipulated price.
    The complaint alleged a delivery of part and payment therefor, and then, “ that subsequently the plaintiffs delivered certain other of the peach crop sold to the defendant, of which a particular account is annexed to their complaint; that the defendant is indebted to the plaintiffs for the quantities so delivered, together with thirty-nine hundred and two crates (that were furnished by plaintiffs over and above the one thousand which the plaintiffs agreed to furnish free of charge), in the sum of thirteen thousand and forty dollars and eighty-two cents, and that no part thereof has been paid except the sum of eight thousand four hundred and eighty-five dollars and ninety cents, .for which sum credit is given to defendant in the said account, and the balance thereof remains still due and unpaid, to wit: the sum of four thousand five hundred and fifty-four dollars and ninety-two cents.”
    The complaint then further alleged as follows: “And for a further, separate, and distinct cause of action, the said plaintiffs allege the making of the agreement hereinbefore set forth ; that the peaches delivered by them to the defendant as aforesaid, constituted only a part of their said growing crops that were purchased by the said defendant in and by his said agreement; that the plaintiffs were ready, and offered on their part to perform their said contract to deliver the residue thereof, but that the defendant refused to take the same, and neglected to provide cars to transfer the same, and directed plaintiffs not to pick the same, by reason whereof a large portion of said crops purchased as aforesaid by the defendant, to wit: ten thousand baskets full, were left upon the trees and perished, which were of the value of ten thousand dollars.”
    The schedule of items annexed to the complaint consisted of about forty different shipments of peaches, running through a period of about thirty days, with some six credits of payments.
    The denials in the- defendant’s answer will require the plaintiff to make proof on the trial of each of the causes of action alleged in the complaint. .
    The plaintiffs moved for a reference upon the usual affidavit, and upon the pleadings.
    The motion was opposed by the defendant, but granted by the court. The defendant appeals.
    
      Arthur McDaniel, attorney, and of counsel for appellant, urged:—I.
    The order is appealable. (1.) The general term was designed not only for the redress of legal errors occurring at the special terms, circuits or jury terms, and before referees, but those of fact likewise ; and they were also designed to redress wrongs arising from an erroneous, arbitrary or otherwise improper discretion by the former courts (Matter of Duff, 10 Abb. Pr. N. S. 416, Court of Appeals, citing People v. N. Y. Central R. R. Co., 29 N. Y. 318, and explaining De Barante v. Deyermand, 41 Id. 355, and Foot v. Lathrop, Id. 358). (2.) The right of a trial in the mode and by the tribunal prescribed by law is a substantial right, and does not rest in the discretion of the court and where there is no competent evid ence upon which the court below could have decided that the trial would involve the examination of a long account, the court of appeals will review the decision (Kain v. Delano, 11 Abb. Pr. N. S. 35, Court of Appeals ; Gregory v. Cryder, 10 Id. 289, Court of Appeals; Welsh v. Darragh, 52 N. Y. 590).
    II. The order should be reversed. (1.) The party moving for a reference must show how, and what way, the examination, of a long account will become necessary upon the trial; and where there is only a general statement in an affidavit, “that the trial of the issues joined will require the examination of a long accountwithout stating how, or why, this is so, it must be considered a mere opinion (Kain v. Delano, 11 Abb. Pr. N. S. 35, Court of Appeals). (2.) The statute does not authorize a compulsory reference unless the accounts are the direct and immediate object of the suit, or the ground of defense, and not merely collaterally or incidentally involved (Kain v. Delano, 11 Abb. Pr. N. S. 36, 37, Court of Appeals, citing Code, § 271; Laws of 1801, ch. 90, § 2; 1 K. &R. 347 ; Todd v. Hobson, 3 Johns. Cas. 518). 3. A referee is only required to possess the skill necessary to examine a long account; and the fact that referees may possess skill and experience equal to a justice of the court does not alter the theory and object of the statute, to leave litigation to the determination of ordinary tribunals created for that purpose, unless there is a special necessity for the use of others (Goodyear v. Brooks, 2 Abb. Pr. N. S. 304, General Term of N. Y. Superior CourtX 4. The object of the,statute was to relieve the court of the tedious examination and investigation of long accounts ; but the delay in trials before referees, the referées’ fees, the increased counsel fees, may often work a wrong, or be so oppressive upon one or the other of the parties, as to be almost a denial of justice, and in all such cases the court should not order a reference merely because its convenience or time may be disturbed (Godfrey v. Williamsburgh City Fire Ins. Co., 12 Abb. Pr. N. S. 250, Feb. 1872, Superior Court, Special Term, Moweli,, J.). 5. .Where a complaint contains two separate causes of action, one of which may, upon trial, require the examination of a long account, and the other one will not, upon trial, require the examination of any account, the statute does not authorize a compulsory reference to hear and determine all the issues in the action.
    III. The order should be reversed. ' The constitution secures to the parties in this action a trial by jury, in this and similar cases (Const, of N. Y. art. 1, § 2; Townsend v. Hendrickson, 40 How. Pr. 143 ; Kain v. Delano, 11 Abb. Pr. N. S. 35 ; McKeon v. See, 51 N. S. 304; Colman v. Dixon, 50 Id. 574, citing Davis v. Morris, 36 Id. 569; Barlow v. Scott, 24 A. 7. 40, and Hudson v. Caryl, 44 Id. 553; Gleason v. Ketelas, 17 Id. 498; Heywood v. City of Buffalo, 14 Id. 534; Wynehamer v. People, 13 Id. 378, 457, 458; Cruger v. Hudson R. R. Co., 12 Id. 190, 198.
    
      Beach & Beman, attorneys ; and Henry D. Beman, of counsel for respondents, urged :—I.
    In an action in which the court has power to order a reference, no appeal lies from such order (Ubsdell v. Root, 3 Abb. 143 ; Kennedy v. Shilton, 9 Id. 157; Dean v. Empire Mutual Insurance Co. 9 How. 69). II. If there is any evidence laid before the court at special term that an examination of a long account will be required, the court has power to refer ; and if that evidence is uncontradicted, then the determination must be held final and conclusive (Whitaker v. Desfosse, 7 Bosw. 682 ; Bachelor v. Albany Ins. Co., 6 Abb. N. S. 240). V. The court of appeals will not review the decision when the court below has decided this question upon competent evidence (Kain v. Delano, 11 Abb. N. S. 35).
    II. The order is right upon the merits. _ I. The light to refer actions on contract, where the trial will involve the examination of a long account, is not within the limitations of the constitution in reference to trial by jury (Townsend v. Hendricks, Court of Appeals, 40 How. 162).
    III. This is an action on contract, and the pleadings, as well as the affidavit, show that a long account is involved.
    IY. This case is within the ruling of the court of appeals, in Welsh v. Darragh, 52 N. Y. 592.
    
      Y. The rulings in Kain ?j. Delano, 11 Abb. A. 8. 34, .do not conflict with the decision in this case.
   By the Coubt.—Howell, Ch. J.

It is objected that this order is not appealable. That the action being upon contraed, and the issues requiring the examination of an account, the order was discretionary, and that therefore, as there was no question of the power, of the court to order the reference, under the uniform decisions of the courts, an appeal from the order does not lie. In the decisions referred to, the appealability of the order was ascertained by determining whether it was within the power of the court to make it. If it was wholly discretionary, it was final, but if the action, or the case made on the motion was not within the statute, the order was subject to review.

Those decisions, however, must be regarded as reversed by subsequent adjudications in the court of appeals, (Townsend v. Hendricks, 40 How. Hr. 162; Kain v. Delano, 11 Abb. N. S. 35 ; Welsh v. Darragh, 52 N. Y. 592), where it is held in substance, that the question of power is always involved in these motions. The court say, that in any case a reference can be ordered only when' the examination of a long account is required, and the power of the court is to be found in that fact. If the proof before the special term does not show that the account is such as brings the action or trial within the statute, the court has no power to make the reference, and if it is made, the decision may be reviewed (Kain v. Delano, supra).

It was further objected that a reference of the issues was an infringement of the constitutional right of trial by jury.

The language of, the bill of rights (Cons. art. 1, subd. 2), is, “the trial by jury in all cases, in which it has been heretofore used shall remain inviolate, &c.” In a literal sense, this would include any common law action, as well actions of assumpsit involving the examination of long accounts, as actions of tort. For the former action, at all times, might be tried by á jury; and, therefore, it might be claimed, that it was a case in which a trial by jury “has been heretofore used.” But as actions involving the examination of long accounts were referable before the adoption of any of the constitutions of this State, the clause quoted from the bill of rights has been confined by construction to such common law actions as were theretofore tried by a jury only.

This question, however, is fully disposed of by Townsend v. Hendricks (supra).

The complaint in this case contains a statement of two separate and distinct causes of action. The first cause of action is for goods sold and delivered; and from the number of items furnished by the bill of particulars, may involve, on the trial, the examination of a long account, within the meaning of the statute. The second cause of action is, the breach of a special contract, and for the recovery of unliquidated damages.

In Evans v. Kalbfleisch (36 Supr. Cf. R.), this court, upon a review of the recent adjudications in the court of appeals, held that the several decisions of this court (Whitaker v. Desfosse, 7 Bosw. 678; Goodyear v. Brooks, 4 Robt. 682, and Batchelor v. Albany City Ins. Co., 1 Sweeny, 346), holding that if any of the issues required the examination of a long account, the entire action was referable, notwithstanding some one or more of the issues were such as the parties had the constitutional right of trial by jury, must be regarded as reversed by such recent adjudications. The court say, “The principle to be deduced from the decisions referred to is, that all the causes of action stated in the complaint must be referable. If part or one only is referable, the court cannot refer the others.” In such case the party must either abandon his non-referable cause of action, or, possibly, after it is disposed of by a jury, the other cause of action may be sent to a reference.

The second cause of action, as stated in the complaint, is non-referable. It is to recover unliquidated damages for a breach of contract, and, standing by itself, the court could not make a comp.ulsory reference. And this court says, in Wheeler v. Falconer, 7 Robt. 45, “The Code, by expressly permitting, even where a long account is involved, the referee to be confined to passing upon a- specific question of fact involved in the issue, and by allowing an account to be taken as a separate matter, for the information of the court, not only authorized but required that neither party should be deprived of the benefit of a trial before a court or a jury as to matters not in-olved in the account.”

The right to unite in the same complaint several causes of action should, as far as is practicable, be confined to such actions as may be tried together and in the same forum. This can only be done by sending all the issues to a jury, if any of them are within the constitutional inhibition, and by refusing to send any to a reference.

Following, therefore, the decision of this court in Evans v. Kalbfleisch (supra), the court had no power to refer the issues in this case, and hence the order of reference should be reversed, with costs.

Curtis and Speir, JJ., concurred.  