
    William J. Roome, Respondent, v. Robert S. Smith, Appellant.
    First Department,
    January 10, 1908.
    Reference — suit to compel restoration of right of way and to recover damages for injury to land —issues not referable — section 1013 of the Code of Civil Procedure construed.
    In an action brouglit to compel the defendant to restore the plaintiff’s right of way and to recover damages for injuries to the plaintiff’s building caused by the alleged negligence of the defendant in excavating on his own land, the court is without power to order a compulsory reference of the issues, if a long account is not involved.
    Under section 1013 of the Oode^f Civil Procedure there can be no compulsory reference, either in actions at law or suits in equity, unless the examination of a long account is involved.
    Appeal by the defendant, Robert S. Smith, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 15tlvday of July, 1907, upon the decision of the court rendered after a trial at the New York Special Term, and also (as stated in the notice of appeal) from the said décision of the court.
    
      Franklin Pierce, for the appellant.
    
      Robert J. Mahon, for the respondent.
   McLaughlin, J.:

The plaintiff at the time of the eommencemént of- this action was the lessee of a parcel of land annexed to and adjoining a parcel owned by the defendant. In connection with his lot, plaintiff had a right of way twelve feet wide across the rear end of defendants lob In excavating for the erection of a building on his lot, defendant destroyed this right of way, and 'this action was brought to compel him to restore the same, and also' to recover damages alleged to have been caused to the building on plaintiff’s lot by the negligent manner in which" the work was done.

The answer put in issue the material allegations of the complaint. After issue had been joined, the cause came on for trial at Special Term, and the learned justice' holding the term, after hearing the evidence relating to the right of way, made a decision upon which an interlocutory judgment was entered, which required defendant to restore the right of way within a time specified, and referred all the other questions to a referee to hear and determine. The matters sent to'the referee to hear and determine were: “(a) Was the defendant guilty of the negligent and unlawful acts as described in the complaint and alleged as having been the cause of the destruction of the stable described in the complaint? (b) Were those acts .the-proximate and sole cause of the injury to plaintiff’s said stable? (c) And if the defendant was guilty of negligence and unlawful acts as alleged in the complaint, and they were the proximate cause of said condition of said stable as alleged, what damages, if any, did the plaintiff suffer therefrom ? (d) And. what damages, if any, did plaintiff suffer from defendant’s interference with said right of way ? ”

The disposition thus made in sending the issues to the referee was against the objection and exception of defendant’s counsel. Defendant has appealed from the interlocutory judgment and assails its validity upon the ground that the court had no power to send to the referee the issues which he did. The sections of the Code authorizing compulsory references are sections 1013 and 1015. Section 1015 refers to incidental questions; that is, other than those raised by the pleadings. Section 1013, therefore, is the only section which need be considered. This section provides: “ The court may, of its own motion, or upon the application of either party, without the. consent of thq other, direct a trial of the issues of fact, by a referee,-where the trial will require the examination of a long.account, on either side, and will not require the decision of difficult questions of law. In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section, to decide the whole issue, or any of the issues; or to report the referee’s finding, upon- one or more specific questions of fact, involved in the issue.” The words “ as prescribed in this section ” refer to where the trial will require the examination of a long account, and in actions in equity, as well as those at law, there can be no compulsory reference unless the trial involves such determination. (Doyle v. M. E. R. Co., 136 N. Y. 505; Thayer v. McNaughton, 117 id. 111; Standard Fashion Co. v. Siegel--Cooper Co., 44 App. Div. 121; Russell Hardware, etc., Co. v. Utica Drop Forge Co., 112 id. 703; Bentz v. Carleton & Hovey Co., 114 id. 865.)

The- negligence of the defendant and the alleged damage to plaintiff’s building by reason thereof, as well as the damage for interference with the right of way, áre clearly issues arising on the pleadings, and could not be referred. (Doyle v. M. E. R. Co., supra; Standard Fashion Co. v. Siegel-Cooper Co., supra.)

The judgment appealed from, therefore, must be reversed and a. new trial ordered, with costs to appellant to abide event. -

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

Judgment reversed, new trial ordered, -costs to appellant to abide event. Appeal from decision dismissed.  