
    Julius Cayard and Others, Suing in Behalf of Themselves and of All Other Stockholders of the Texas Oil and Pipe Line Company, a Corporation, Who May Come in and Contribute to the Expenses of This Action, Appellants, v. Texas Crude Oil and Mining Company, a Corporation, Organized and Existing under the Laws of South Dakota, and Others, Respondents.
    First Department,
    March 32, 1907.
    Practice — compulsory reference in action for accounting not authorized until right to accounting determined.
    In an equitable action for the specific performance of an alleged agreement and for an accounting, when the execution of the agreement is in issue there can be no compulsory reference on the ground that the examination of a long account is involved until the right to the accounting is determined by trial at Special Term.
    Appeal by the plaintiffs, Julius Cayard and others, suing in behalf of themselves, etc., from an order of the Supreme Court, made at the Yew York Special Term and. entered in {he office of the clerk of the county of Yew York on the 30th day of November, 1906, referring the action to a referee.
    
      Walter Carroll Low, for the appellants.
   McLaughlin, J.:

This action was brought for the specific performance of an alleged agreement and for an accounting.

The answers of the different defendants put in issue the existence of the agreement and the right of the plaintiffs to the relief claimed. After issue had been joined, an order was made referring the matter to a referee to hear and determine, and the plaintiffs appeal therefrom.

The appeal is well taken. The action is in equity and the right to an accounting depends upon the existence of the alleged agreement, and this having been denied in the answers of the different defendants, it was the issue to be tried. This issue does not require the examination of a long account, or bring the case within the provisions of the Code (§ 1013) which authorize a compulsory reference. The plaintiffs, are entitled to. have the question of their right to an accounting" determined by . a trial at Special Term, before a reference can be ordered to take an account. (Jones v. Lester, 77 App. Div. 174; Leary v. Albany Brewing Co., 66 id. 407; Knox v. Gleason, 63 id. 99; Hilton v. Hughes, 5 id. 226; Averill v. Emerson, 74 Hun, 157.) If it be there determined that the right to an accounting exists, then a reference may be ordered.

The order appealed from, therefore, must be reversed, with ten dollars costs, and disbursements, and the motion denied, with ten dollars costs.

Patterson, P. J., Ingraham, Clarke and Houghton, JJ., concurred.

Order • reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs. Order filed.  