
    JAMES PATTERSON, Plaintiff and Respondent, v. CHARLES STETTAUER, and others, Defendants and Appellants.
    reference—compulsory.
    I. Motioh fob, what hot ah ahswee to.
    
      a. Fraud—the fact that the answer presents a' question of fraud for trial, is not a sufficient- answer.
    
      b. Difficult questions of law involved.
    
    1. An affidavit made by the attorney and counsel of the p^rty opposing the motion, stating generally that difficult questions of law are involved, is not sufficient.
    1. The questions of law expected to arise must be pointed out specifically, and in such manner as to enable the court to determine whether they are of any real difficulty.
    Before Monell, Ch. J., and Freedman, J.
    
      Decided June 7, 1875.
    Appeal from an order of reference.
    The action was for the sale and delivery under a special contract “of as many pounds of fresh beef,, net weight on the block, as may be called for by the government commissary.” The contract fixed the. price per pound, and the terms and manner of payment.
    The complaint alleged the delivery between February, 1868, and May, 1868, of six hundred and forty-seven thousand five hundred and seventy-eight pounds,, and claimed to recover a balance of seventeen thousand three hundred dollars and nine cents.
    ' The answer of the defendants denied and put in issue the number of pounds of beef alleged to have been delivered.
    And for a further defense it alleged in bar, “that after the delivery by the plaintiff to the defendants of all the beef ever delivered by him under the contract set forth in the complaint, and after the plaintiff had dfawn all the drafts which he ever did draw upon CL S. Stettauer & Co., for or on account of the beef, or payment of the beef delivered by him under the said contract, and after all the said drafts were past due, and when the plaintiff was entitled, if ever he was entitled to commence this action, and to recover of the defendants upon and for the cause of action set forth in the complaint, and on or about April 29, 1870, the plaintiff commenced an action in this court against the defendants upon and for a part of the same cause of action,, that is to say, to recover of these defendants the sum of eleven thousand six hundred and forty dollars and twenty-five cents, being the aggregate amount of five drafts alleged in the complaint in that action to have been drawn by him upon C. S. Stettauer & Company, at twenty days sight, in payment of beef delivered by the plaintiff under the said contract, and in conformity therewith, and endorsed as correct by the commissary agent named in the said contract, and presented for acceptance and payment to them, and which they had refused to pay; that these defendants appeared and defended the said action, and the same was pending when this action was commenced, and that such proceedings were had therein ; that after this action was commenced, and on October 21,1874, judgment was recovered and entered therein, in favor of the plaintiff and against the defendants, upon and in conformity with the report of a referee to whom the same was referred for trial and determination, for the sum of five thousand and ninety-nine dollars and seventy-nine cents damages, and nine hundred and eighteen dollars and eighty cents costs, being the amount of one of the last named drafts, which was dated May 1,1868, and was for the sum of three thousand five hundred and five dollars and ninety-five cents and interest thereon, the said referee having in his report therein, decided and determined that the plaintiff was not entitled to recover against the defendants, for or on account of the four other drafts set forth in the complaint in that action, and amounting in the aggregate to eight thousand one hundred and thirty-four dollars, and being all dated April 23, 1868.”
    The separate items of delivery numbered upwards of sixty.
    The plaintiff moved for the reference upon the pleadings, and an affidavit that the trial would require the examination of a long account.
    The defendants insisted that difficult questions of law would arise, and that there was a question of fraud raised by the answer.
    The motion to refer was granted, and the defendants appealed.
    
      A. R. Dyett, for appellant.
    
      Elihu Root, for respondents.
   By the Court.—Monell, Ch. J.

The objection that the defendant’s answer presents a question of fraud, is disposed of by Welsh v. Darragh (52 N. Y. 590). It is there held, that if the plaintiff’s cause of action is referable, it can not be made non-referable by the defendant’s answer.

The only remaining objection is, that difficult questions of law will arise, which under the exception in the code, renders the action non-referable (Code % 271).

The court can not in any case direct a reference, ‘‘where the investigation will require the decision of difficult questions of law;” but the party alleging that such questions will arise, must present the points of difficulty clearly and distinctly ; for the court must be satisfied that they are questions of real difficulty. And it is not enough that the party or Ms attorney or counsel allege it generally (Anonymous, 5 Cow. 423; Shaw v. Ayres, 4 Id. 52; Lusher v. Walton, 1 Caines, 149; Salisbury v. Scott, 6 John. 329).

The defendants have not complied with these requirements ; and we can not determine, from the affidavit of their counsel, what questions of law he claims will arise. After stating the proceedings in, and the trial,of another action between the same parties, in which certain questions of law were discussed and decided, he says : “ On the trial of this action important-questions of law will arise in addition to the important and difficult questions of law which arose upon the said reference, and which were argued, according to my present recollection, for nearly two entire days before the referee, in addition to voluminous briefs submitted by both parties ; and other questions of law will arise upon the trial of this action upon the defense set forth in the answers of the defendants in this action, as by reference thereto will more fully appear.”

I do not think we are required to carefully examine the pleadings to see what, if any, questions of law, difficult or otherwise, may be raised upon the defense set up. Such questions, if they exist, should be pointed out, that we may see what the party relies on, and whether they are of any real difficulty.

As sole referees are now almost invariably members of the legal profession, they are, perhaps, as competent to determine even difficult questions of law, as the court. Besides, the ample remedy by appeal to correct errors is another and a sufficient protection.

I am of opinion the order should be affirmed, with costs.

Freedman, J., concurred.  