
    Clara W. Warner, plaintiff, vs. The Western Transportation Company, defendants.
    An action to recover the value of property lost to the plaintiff hy the negligence of the defendants is not upon a contract, hut upon a breach of duty, as a tort, and is not referable.
    (Before Moncrief, J. at special term,
    March 9, 1865.)
    Motion to refer this action to a referee.
   Moncrief, J.

It has long been a settled question, that actions for torts are not referable, although they may involve the examination of long accounts ; and if such an action is referred, it is a mere arbitration, and the courts will not review the decision of the referees. (Yates v. Russell, 17 John. 461. Camp v. Root, 18 id. 22. Johnson v. Parmely, 17 id. 129.) The language used in the Code, (as under the Revised Laws and Revised Statutes,) is broad enough to cover all actions, and yet it has uniformly, and scarcely with an exception, been held that references are proper only in actions founded on contract, and never in actions ex delicto. (Whitaker v. Desfosse, 7 Bosw. 678.) ;

This action is brought against the defendants to recover the value of property lost to the plaintiff by the negligence and carelessness of the defendants, as ■ common carriers. Such an action does not proceed upon an allegation of the non-performance of a contract, but for a breach of duty, and is not. referable. (7 Hill, 182, 581. 4 How. Pr. 286. 19 Wend. 239. 3 id. 167.)

The motion to refer must be denied, with $10 costs, to abide the event.  