
    LAWLESS against O’MAHONEY.
    
      Supreme Court, First Department, First District; General Term,
    September, 1870.
    Reference.—Action Involving Long Account.— Trial by Jury.
    An order of reference of the trial of an action, one of the issues of which involves the examination of a long account, will not he reversed on appeal, on the suggestion that such issue is not a material issue.
    If defendant would claim trial by jury in such a case, he must first dispose of the issue.
    Appeal from an order.
    This action was brought by John Lawless against John O’Mahoney, to recover on certain bills of exchange, which the plaintiff alleged were drawn by August Belmont & Company, of New York, on the house of Rothschild & Sons, at London, payable to the. order of George Hopper, and by Mm indorsed in blank, ' wMch plaintiff received before dishonor, and on which the plaintiff had subsequently recovered a judgment against Belmont as the drawer.
    The complaint further alleged that afterward, the defendant O’Mahoney, having interposed a claim to the funds with which the bills were purchased of Belmont, Belmont was allowed to pay the amount into courb and be discharged, deducting the sum of fifteen hundred dollars, however, as costs, expenses and charges, which were retained by Mm out of the funds.
    “And the said plaintiff further avers that in prosecuting said bills and procuring said judgment he has incurred a liability for a large amount of costs, charges and counsel fees, amounting to over five thousand dollars, for wMch his attorneys have a lien upon said fund, and that said fund is subject to said lien, and that he is entitled to damages, wMch are included in said judgment, which are given Mm by the statute laws of Hew York, to the amount of about fifteen hundred dollars of said judgment, which forms no part of the fund deposited to purchase said bills, or of the interest on the same.”
    The answer of the defendant averred that he, the defendant, had deposited the funds in question with Belmont, upon which Belmont had drawn the bills referred to, and that Hopper, the payee,'acted merely as defendant’s agent, and that the plaintiff, at the time that the bills came to Ms hands, had notice that they were not the property of Hopper, and that Hopper had no interest therein except as the defendant’s agent.
    The defendant admitted that the plaintiff had obtained the judgment alleged against Belmont, and that the same had been paid into court, but he denied that plaintiff had incurred liability for costs, &c., as alleged in the complaint, or that the fund was subject to the lien alleged, or that plaintiff was entitled to damages. The answer also denied other allegations of the complaint.
    The attorneys for the plaintiff moved at special term for an order of reference on an affidavit of one of the attorneys, which merely"stated “that this canse is at issue on questions of fact; that the trial wiE involve the examination of' a very great number of facts and the taking of sundry accounts, and the case is in his judgment an appropriate case for a referee for trial and determination.”
    The motion was opposed by the defendant’s attorney, on an affidavit stating that the action was “not one appropriate for a reference, and that the case was not referable, in that there was no material issue therein involving the examination of a long account, or any ac-, count whatsoever on either side, that the investigation of the action required the decision of difficult questions of law arising as foEowing,” specifying six questions, and further aEeging that it was “ totaEy immaterial as a question of fact in the action whether the plaintiff had any account for professional services, or any other account whatsoever, in that it is not claimed herein that such account or service are against the defendant, and the same rendered for him either on his behalf, authority, or direction, in any manner whatsoever.”
    The motion was heard before Mr. Justice Cardozo, at special term, in October, 1869, and granted; and from his order the present appeal was taken.
    
      H. E. Tallmadge, for the appellant,
    Insisted that, upon a review of the pleadings, there was no material issue involving the examination of an account.
    
      Rice, Wilson & Stitt, for the respondent.
   By the Court.—Ingraham, P. J. (orally.)

Upon this appeal we cannot consider the question whether the issues involving the examination of an account were material or not. When the motion for a reference was made, the plaintiff had already set up his claim for an accounting. This claim was in the pleadings, and formed a part of the issues.

The defendant should have disposed of this issue, if it be immaterial, if he desired to send the case to a jury. Not having done so, and the issue being in the pleadings, it was within the power of the court to order a reference.

The order must be affirmed. 
      
      Present—Ingraham, P. J., and George G. Barnard, J.. In this case, Cardozo, J., having made the order appealed from, did not sit.
     