
    WILLIAM S. VERPLANCK, as Receiver, &c., Plaintiff and Respondent, v. MARCUS KENDALL, Defendant and Appellant.
    Before Curtis, Ch. J., and Freedman, J.
    
      Decided December 1, 1879.
    Reference.
    Issues in an action for damages for fraud and deceit cannot be referred for hearing and determination without consent of parties.
    But when the complaint sets forth an action on a contract, and it appears that the trial thereof involves the examination of a long account, the defendant cannot defeat a reference by a tender of an issue of fraud in the transaction, and a claim for damages therein, in the way of recoupment or counter-claim.
    Appeal from an order referring the issues to a referee to hear and determine the same.
    
      Alvin Burt, for appellant.
    
      William W. Badger, for respondent.
   By the Court.—Freedman, J.

This action, as -pleaded, is for the recovery of damages for fraud and .deceit. Tort being the - whole groundwork of the .action, it is settled that the defendant has a constitutional right of trial by jury, of which neither the court ■nor any statute can deprive him, and that it is no ■answer to his claim of. such a trial to say that the plaintiff may fall back upon an implied promise (Townsend v. Hendricks, 40 How. Pr. 143, reversing S. C., 32 N. Y. Super. Ct. [2 Sweeny] 503).

The same right exists in an action to recover unliquidated damages for the breach of a contract (Ross v. Combes, 37 N. Y. Super. Ct. [5 J. & S.] 289).

The character of the action is determined by the .complaint, and it is only when the complaint sets forth ■an action on contract which is shown to involve the .examination of a long account, that the defendant cannot defeat a reference by a tender of an issue of fraud -in the transaction, and claiming damages by way of recoupment or counter-claim (Welsh v. Darragh, 52 N. Y. 590; Patterson v. Stettauer, 39 N. Y. Super. Ct. [7 J. & S.] 413).

The order should be reversed, with costs.

Curtis, Ch. J., concurred.  