
    ROSS against THE MAYOR, &c., OF NEW YORK
    
      New York Superior Court; Special Term,
    
    
      November, 1866.
    Reference.—Long Account,
    An action on the statute to recover from a oity or county the damages incurred by the plaintiff from a mob or riot, though involving a large number of items of damage, is not an action involving the examination of a long ac. count, and, therefore, cannot be ordered to a reference without consent of parties.
    Motion "by the plaintiff to refer the cause.
    
      Mr. Parsons, for the motion.
    
      B. O’Gorman, opposed.
   Monell, J.

This is an action to recover damages for the destruction of property by rioters, in July, 1863, The trial of the action will require the examination of a large number of items of property injured or destroyed, the value of which constitutes the damages the plaintiff seeks to recover; and it is claimed that such a large number of items constitutes an account, and renders the action, therefore, a referable one.

The language of the Code of Procedure and of the Revised Statutes, in"respect to the rcferability of actions is -the same; and a compulsory reference can be ordered only where the trial will require the examination of along account; and, according to all the cases, “ account ” must be taken in the ordinary-acceptation of the word. Under the Revised Statutes it was uniformly decided that actions for torts were not referable (Silmser v. Redfield, 19 Wend., 21; Dederick v. Richley, Id., 108). And even in covenant, a reference was not allowed, where mere items of damages were to be examined (Thomas v. Reab, 6 Wend., 503). Under the Code of Procedure the decisions are as uniform ; and I have not been able to find any ease holding that actions for torts can be compulsorily ordered to a reference. I was referred, on the argument, to several cases which, it was supposed, favored the reference of actions like the one in question ;.but I do not find, upon examining those cases, that they in any degree sustain the plaintiff’s motion.

In Keeler v. Poughkeepsie and Salt Point Plank Road Co. (10 How. Pr., 11), the action was upon a contract for constructing a plank road, and there being a long. account, the action was clearly referable. Mills v. Thursby, No. 1 (11 How. Pr., 113), and Jackson v. De Forest (14 Id., 81), were cases of partnership accounting and expressly within the letter of the statute. Atocha v. Garcia (15 Abb. Pr., 303), was also on contract. I was also referred to some cases on insurance policies, which were held to be referable. Without stopping to distinguish between such actions, and such' as seek to recover damages for injury to, or destruction of property, it is enough that the power to refer insurance cases is much doubted (McLean v. East River Ins. Co., 8 Bosw., 700), and has been-allowed only when no issue besides the ascertainment of the value of the property injured or destroyed, remained to be tried (Samble v. Mechanics’ Ins. Co., 1 Hall, 56). Whereas, it has frequently been decided since the Code, that actions for wrongs, or actions not arising on contracts, cannot be compulsorily referred. In Sharp v. The Mayor, &c., of New York (9 Abb. Pr., 426), the action was by the lessee of.a ferry to recover damages for alleged failure of defendants’ title. Judge Clebke says : “ Compulsory references should be rigorously confined to cases invoking the examination of a bona fide account, in an action of contract.” McMaster v. Booth (3 Code R., 111 S. C.; 4 How. Pr., 427) was to recover damages for injury to property, caused by the defendants’ negligence. The property consisted of a large number of planes, and a great, number of tools. A reference was refused. (Derry v. Field, 13 How. Pr., 437), was against a sheriff for a false return to-an execution. It is there said, “ Examination of numerous items of damage does not constitute an account between the parties, within the meaning of that term.” , And MeCullough v. Brodie (Id., 346), was an action for damages for false representations; and it was said, when the items to be investigated are made the subject of examination, in order to recover damages strictly and properly so called, either party has a right to have the issues tried by a jury.”

It will be seen, therefore, that the current of decision is in opposition to "the power of the court to make compulsory reference of actions brought to recover damages not arising out of contract, even although the items of damages which are to be examined be ever so numerous.

This action is brought under the act of 1855, which renders the corporation liable for damages, for destruction of or injui-y to property, by a mob ; and, although, in ascertaining the plaintiff’s damages, a long and probably tedious examination of the extent of the injury and value of the property must be had, yet the case does not fall among such as the court has the power, without the consent of parties, to order to a reference. I regret that it is so.- Rot only might much time of courts and juries, now, occupied in the mere assessment of the value of property in this class of cases, be more advantageously employed, but results more accurate and satisfactory could be obtained by the time and care which referees would bestow in investigating such claims. But the legislature have confined the power to a class only, and we cannot enlarge the statute to cover or include other cases.

Motion denied.  