
    MARY L. DAY, RESPONDENT, v. JOSEPH A. JAMESON, et al., APPELLANTS.
    
      Reference—when ordered—long account when directly involved in issues.— Costs.
    
    In an action to recover moneys alleged to have been deposited with defendants as bankers, where the answer states that such deposit was made with defendants as brokers, for margin with which to speculate for plaintiff, and sets out a long account showing a counter-claim for losses arising therefrom, the court has power to order a reference, though on the motion therefor, it appears that plaintiff’s liability upon the account depends upon the question of her husband’s authority to act as her agent.
    It is within the discretion of the court to deny the motion where the plaintiff offers a stipulation that if such agency be proved, the account will not be disputed ; but where it appears that such agency may be proved as to part only of the transactions covered by the account, the general term will modify the denial by providing that it shall be without prejudice to a motion for a reference before the trial judge in a proper case.
    Where the order in such a case does not state that the motion was denied on the ground of lack of authority, the defendant will be charged with costs of appeal.
    Before Sedgwick, Ch. J., and Freedman, J.
    
      Decided December 3, 1883.
    Appeal by defendants, from an order denying their motion for a reference.
    Defendants are stock-brokers. The plaintiff claimed judgment in the sum of $9,861.43., for money, which she alleged she deposited with them as bankers. The defendants that she deposited the money with them as brokers, as a margin for speculations, and that it was wholly applied by her authority to meet losses by her in those speculations, and that the speculations were made for her by her authority ; and they set up a counter-claim of $2,030.70, for losses not covered by the margin. On the motion by defendant for a reference, it appeared that if the transactions in stock were on her account, it was because she had directed them through her husband as her agent, who was the one who, in fact, gave defendants order and directions. To-meet the motion, among other objections, the plaintiff offered a stipulation which was recited in the order after-wards made and filed with the papers. It was: “The plaintiff hereby stipulates that if this case is tried before a jury, and the jury or the court decide that the plaintiff’s husband was authorized as her agent, to purchase and sell stocks and securities upon a margin in her name, with her money, on deposit with the defendants, that she will not dispute any of the items of the account annexed to defendants answer, but will admit that said account is in all respects correct.” The account contained more than two hundred items.
    The motion was denied.
    
      Henry A. Root, and Joseph H. Choate, for appellants.
    
      Daniel P. Hay, for respondent.
   By the Court.—Sedgwick, Ch. J.

—I am of opinion that it was within the power of the court below to grant ■the motion, because the matters to which the account set up in the answer pertained, were directly involved in the defense and counter-claim, and were not collateral to the issue or details of evidence only ; and that it was within the discretion of the court to deny the motion, if the stipulation offered by plaintiff would render an accounting before a jury unnecessary. There seems to me to be no doubt, that if the evidence the defendant might produce to show that the plaintiff gave authority to her husband to give' orders, etc., to the defendants for her, would be applicable to the matters of account in solido, there should be no reference. Further, there should be no reference, if the defense be upon an account stated, but no decision as to this is made, one way or the other..

. The defense claims, however, that on the trial, the defendants may be, able to show that plaintiff’s husband was her agent as to some matters in account, but not as to others, and that the stipulation will not cover the case of the jury being obliged to take the whole account, and to make up a new account that excludes those particulars as to which sufficient proof of agency was not given. As to this, perhaps it might be right to think that the defendant should not affect the action of the court-upon a possibility, as suggested by them, of a partial failure of proof on. their part. But beyond this, while the application of the stipulation may be what it is argued to be by the defendants, yet, on the facts of this case, as shown by its intrinsic nature and the affidavits read, it is not probable that the defendants will, in fact, meet on the trial the danger they fear. To entirely prevent an unforeseen contingency happening, which it may be too late to remedy, a modification of the order should be made, by properly inserting “without prejudice to the court upon the trial directing a-reference on motion of defendants, if a reference then appears to be necessary or proper.” The order made below does not state that it was made because the court had no power to order a reference. The defendants should, therefore, pay the costs of this appeal.

Order modified as directed, and affirmed as modified, with $10 costs.

Freedman, J., concurred.  