
    FREDERICK L. DEGENER, Respondent, v. JOHN T. UNDERWOOD and Another, Appellants.
    
      Reference, motion for not barred by circumstance that the time for amendment of pleading as of course has not expired—Vacating order, an amended answer not changing the issues is not cause for vacator.
    
    Before Freedman and Ingraham, JJ.
    
      Decided November 21, 1889.
    Appeal from order referring the issues and from order denying defendants’ motion to vacate the order of reference.
    
      James A. Hudson, attorney and of counsel, for appellants, argued :—
    I. The Code does not authorize the making of such an order before the issues that are to be tried are definitely fixed. Section 1013 of the Code ; Keeler v. Poughkeepsie Plank R. Co., 10 How. 11 ; Sharp v. Mayor, etc., 18 Ib. 313 ; Simmons v. Bigelow, 6 N. Y. Sup. 435.
    II. An order of reference, in a case wherein the court has power to make it, is yet a discretionary order. The language of the statute is permissive, not mandatory. Under the conditions that existed at the time this order was granted, we respectfully submit that it was impossible for the court to exercise a judicial discretion in granting the order, because the necessary facts were yet in uncertainty, and would be until the issues should be definitely fixed. The complaint alone was sufficient to show only that the action was of the class that might be referred, to wit, on contract. This is all that is meant in Untermyer v. Bienhauer, 105 N. Y. 521, and Welsh v. Darragh, 52 Ib. 590, therein cited and quoted from. Indeed there was nothing to prevent the plaintiff from serving an amended complaint after the order of reference was made, and thereby present a non-referable cause.
    III. The amended complaint served after issue joined and the cause regularly noticed for trial destroyed the former issue, and the new issues are not •covered by the order of reference. Ostrander v. Conkey, 20 Hun, 421 ; Clifton v. Brown, 27 Ib. 231 ; Kline v. Corey, 18 Ib. 524. The “without prejudice ” clause contained in,section 542 must be considered as having a limited meaning, and so considered does not take the case out of the principle of above decisions. Robertson v. Bennett, 52 How. 287 ; Burril v. Moore, 5 Duer, 654 ; Brannigan. v. Palmer, 5 Week. Dig. 521. The case of Enos v. Thomas, 4 How. 289, will probably be cited against the appeal. That case only holds that the plaintiff could notice a motion for reference- before the defendant’s time to amend his answer had expired. It was a special term decision of another department made twenty years ago, and contains no argument nor citation of authority. Its broad language was not necessary to the determination of the question then before it.
    
      J. E. Hadden, attorney and of counsel, for respondent, argued :—
    I. The order of reference was properly granted, because it appeared upon the moving papers that the trial would require the examination of a long account, on the part of the plaintiff, and would not require the decision of any difficult questions of law. And the accounts to be examined are the immediate object of this suit, and are not collaterally involved ; that is to say, as the rendition of the services and materials were averred by plaintiff, and denied by defendants, it is necessary that they should all be proved, in order to sustain plaintiffs claim. Code of Civil Procedure, § 1013 ; Kain v. Delano, 11 Abb. N. S. 29 ; Welsh v. Darragh, 52 N. Y. 590.
    II. Nor was it any answer to say, that defendants intended to amend their answer, and thereby, in the opinion of defendant’s counsel, change the issues to be tried. § 542 Code Civil Procedure, Enos v. Thomas, 4 Plow. 290.
    III. The character of an action is determined by the complaint. The answer cannot change it. If the action is a referable one the answer cannot make it a non-referable one. Welsh v. Darragh, 52 N. Y. 590 ; Untermeyer et al. v. Bienhauer, 105 Ib. 521; Camp v. lngersoll et al., 86 Ib. 433-436.
    IV. The amended answer does not in any way change the issues to be tried, and therefore the motion to vacate was properly denied.
   Per Curiam.

The moving papers upon which the order of reference was granted, and which included the pleadings, satisfactorily established that the trial of the issues would require the examination of a long account, containing' 714 items, on the part of the plaintiff, that it would not require the decision of any difficult question of law, and that an account between the parties in the proper acceptation of the term was directly involved. It was no answer to the motion to say that the defendants intended to amend their answer, Enos v. Thomas, 4 How. 290. The foundation of the practice in the courts rests upon acts, and not upon mere intentions. The case, as it appeared upon the moving papers, was clearly referable, and consequently no error was committed in granting the order of reference.

The amended answer which, was subsequently served, in no way lessened the necessity of a reference. The incorporation of a counterclaim rather increased the necessity. On the motion to vacate the order of reference on the ground that the issues had been changed by an amendment to the answer, the burden of proof was on the defendants to establish that the answer as amended rendered a reference unnecessary. This they wholly failed to establish.

The case presents only questions of practice and not of jurisdiction, and upon all the facts we cannot say that the several judges who made the orders appealed from abused the discretion vested in them.

The orders appealed from should be severally affirmed with costs and disbursements.  