
    MARY A. DURKIN, as Administratrix, &c., Appellant, v. THOMAS R. SHARP, as Receiver of the Long Island Railroad Company, Respondent.
    
      Reference — when it cannot 1)6 ordered without the consent of the parties — the right to order one is not affected ly the fact that one of the parties is a receiver.
    
    Appeal by tbe plaintiff from an order made at Special Term, referring tbe action to Hon. Josiah Sutherland, as a referee, to hear and determine.
    Tbe action was commenced by tbe leave of tbis court against tbe •defendant as a receiver, to recover damages for tbe death of tbe plaintiff’s intestate, caused by tbe derailment of tbe train of which be was engineer.
    The' order was made upon an affidavit made by one of tbe defendant’s attorneys, alleging that, prior to tbe commencement of Ibis action, an action bad been brought against tbis defendant by ione John H. Brown, a passenger upon tbe same train, for injuries sustained in tbe same accident. That action was referred to Hon. Josiah Sutherland by consent of tbe parties, was tried before him, and resulted in a report in favor of Brown for $1,500. Tbe same counsel who appear in tbis case appeared in and tried that action .•on behalf of both parties. In tbe action of John II. Brown, a ■great mass of testimony was adduced, tbe taking of which neces.sarily occupied much time, and occasioned heavy expense. Tbe stenographer’s fees alone amounted to over $600. Tbe issues in tbis action are precisely similar to those in the case of Brown, and involve going over tbe same ground ; except that some additional testimony will be admissible in tbis case on account of tbo deceased having been an employee of tbe defendant.
    Upon -proof of these facts tbe court ordered a reference of tbis action to tbe same referee before whom tbe Brown case was tried, and provided in tbe order that the testimony taken in that case might be read by either party to tbis action, and if so read, should be considered as having- been taken in tbis action; limited tbo deiendant in bis defense, and required him to pay without recourse the referee’s fees and also the stenographer’s charges for all additional testimony.
    The court at General Term said: “ It is very clear that the court is not authorized to order a reference of an ordinary action of this kind without consent. Nor can the order appealed from be sustained as a proceeding to reach or affect a fund in court. There is no fund in court, and the action is one to recover damages for a breach of duty by one who is operating a railroad, by the order of the corut. The plaintiff having obtained leave to sue him, she is entitled to prosecute her action in the mode which the law has provided. Her rights in that respect are the same as if the plaintiff were seeking to enforce a personal instead of an official liability. For it is obviously the duty of the court to afford the usual and appropriate means of obtaining justice* to a party who applies in a regular manner for the enforcement or protection of his rights. The other provisions of the order are also unwarrantable.”
    
      Wm. W. Badger and I)mid Mitchell, for the appellant.
    
      J$. B. Hinsdale, for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., and Gilbert, J.

Order reversed, with costs and disbursements.  