
    Charles Robinson, Resp’t, v. The New York, Lake Erie and Western Railroad Company, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed December 9, 1887.)
    
    1. Reference—Long account — Court need not be shown there is a LONG ACCOUNT IN ANY PARTICULAR MANNER.
    It is not necessary that the fact that an examination of a long account is involved, should be shown to the court in any particular manner, where-it does so appear either by the pleadings or by affidavit the court may refer.
    2. Same—What a long account—Code Civil Pro., § 1013.
    The complaint in this action alleged an agreement between the parties-hereto whereby the defendant was to reimburse plaintiff all expenses, which he might incur in carrying out other parts of said agreement, and that the expenses of certain actions brought pursuant thereto were a sum named. The bill of particulars showed twenty-four items of money paid by plaintiff for attorneys and counsel. The answer put in issue the employment of said attorneys and counsel in connection with said matters. The action was referred as involving a long account. Held, it was properly referred; that it did appear to the court that a trial of the issue of fact would require an examination of a long account within section 1013.
    3. Same—Counterclaim:—When triable before referee—Code Civil. Pro., § 969.
    The first counterclaim set up in the answer alleged that the agreement, set up in the complaint was obtained by fraud and asked that it be canceled and annulled. Meld, that the trial of this question before a referee, would not be in conflict with Code Civil Procedure, § 969.
    
      4. Same—When iriable before referee under Code Civil Pro., §' 974.
    The second counterclaim re-alleged the ground set up as a ground for” the equitable relief asked for in the first counterclaim and asked judgment therefor for $60,000. Reid,, that this counterclaim could be tried by a referee under Code Civil Procedure, § 974-.
    Appeal from order of the special term referring the-issues in this action for trial before a referee.
    
      Henry Schmitt, for app’lt; Edward B. Whitney, for resp’t.
   Ingraham, J.

The complaint in this action alleges the execution of a contract whereby the defendant agreed to hold plaintiff harmless from all claims, demands and suits which may be brought against him on account of certain transactions therein alleged, and that defendant would indemnify and reimburse him (plaintiff) for all expenses which he may be put to or compelled to pay on account of the transfer of certain stocks therein referred to or claim of ownership thereto.

That subsequent to the execution of such agreement certain actions were brought against the plaintiff on account of the ownership of said stock, and that plaintiff requested the defendant to assume the defense of said actions, but that the defendant authorized and requested the plaintiff to defend such actions and agreed to assume the expenses of such defense, and that plaintiff paid for the expenses of such defense the sum of $13,177.70, and for which he asks judgment.

In response to a demand of the defendant’s, the plaintiff served a bill of particulars of his claim showing twenty-four items of money paid by the plaintiff from May 19th, 1878, to March 18th, 1882.

The answer of the defendant put in issue the employment by the plaintiff of attorneys and counsel to defend such suits and the payments made by plaintiff as specified in his book.

The plaintiff, to recover in this action, will have to prove each item set up in his bill of particulars, and also prove that the same was paid in the defense of the suits mentioned in the agreements.

By section 1013 of the Code it is provided that the court may, of its own motion, or upon the application of either party without the consent of the other, direct the trial of the issues of fact by a referee, when the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law.

The case of Welsh v. Darragh (52 N. Y., 592), is a direct authority to sustain the power of the court to refer this action. There the action was for goods sold and delivered, and the bill of particulars showed that there were twenty-six items of specified articles of merchandize which were alleged to have been sold and delivered to the defendant at-specified prices. It was held that actions on contract could be referred; that the nature of the action must be determined by the complaint and the answer could not change it. If the action is a referable one, the answer could not make it non-referable, and that the number of items was sufficient to make a long account within the requirements of the statute.

What is said in that case will apply to this case, and it would be extremely inconvient, if not impracticable, for a jury to try each of the twenty-four issues, and determine which of them had been proved, and which of them should be disallowed as unproven. The fact that an examination of an account will be involved in the trial of the issue is apparent from the pleadings and the bill of particulars. It is not necessary that the fact that an examination of a long account is involved, should be shown to the court in any particular manner; where it does so appear either by the pleadings or by affidavit, the court may refer.

The case of Camp v. Ingersoll (86 N. Y., 433), is not in conflict with this decision.- In that case the issues in the action did not involve the examination of accounts. Such .examination could only be necessary collaterally; the account was not the ground of the action, but it was alleged that on examination of the account between a party to the action and a third party, would prove that there was a defense to the action.

We think, therefore, that it did appear to the court below that a trial of the issue of fact in this action will require an examination of a long account within the section of the Code referred to.

The defendants claim, however, that section 974 of the Code requires that the counter-claims set up in the answer, must be tried either before the court or by a jury. That section provides that when the defendant interposes a counterclaim, the mode of trial of the issue of fact arising thereon is the same as if it arose in the action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim, and demanding the same judgment.

The first counterclaim set up in the answer alleges that the agreement set up in the complaint was obtained by fraud, and asked judgment that it be canceled and annulled. This would be an equitable cause of action and would be triable as directed under section 969, viz.: “Must be tried before the court unless a reference is ordered.” In this case, as a reference has been ordered, the trial before a referee will not be in conflict with that section.

The second counter-claim re-alleges the ground set up as a ■ ground for the equitable relief asked for in the first counter-claim, and asks judgment, therefor, for $60,000.

This counter-claim would, under section 974, be triable as directed by section 968—that is, by a jury—unless a jury trial is waived or a reference is directed; and as a reference has been directed, a trial before a referee would not be in conflict with that section.

We have examined the record and can see no difficult questions of law presented. In the case as presented, therefore, we think the court had power to refer the action, and that such power was properly exercised. The order-appealed from should, therefore, be affirmed, with ten dollars costs and disbursements.

Sedgwick, 0. J., and Freedman, J., concur.  