
    McCoun & Sherman vs. Rowley & Bulkley.
    ALBANY,
    Dec. 1837.
    An order of reference cannot regularly be made by a circuit judge at a circuit court holden by him, unless both parties be present, or on reasonable notice to the absent party.
    Motion to set aside an order of reference made at the circuit. The cause was noticed for trial and was on the circuit calendar; before it was reached in the regular order of calling the calendar, on the ex parte application of the plaintiffs and without notice to the defendants, the circuit judge made an order for its reference. The defendants now moved to set aside the order of reference.
    
      I. W. Bishop, for the defendants.
    
      D. Gardiner, jun., for the plaintiffs.
   By the Court,

Nelson, Ch. J.

The practice at the circuit formerly was, when a cause was reached on the calendar and it was conceded by both parties that the trial would require the examination of a long account, to- make an order of reference; but not otherwise. The circuit judge no doubt has the right to make such order, if it be made to appear to him that the trial of the cause will require the examination of a long account; but both parties should be heard, or it should be shown that reasonable notice had been given to the party who does not appear, or to his counsel.

Motion granted.  