William L. Avery et al. v. John H. Sand.
(Supreme Court, Appellate Division, Third Department,
September 29, 1896.)
Compulsory reference—When granted.
Merely because a case is triable by the court without a jury does not authorize a compulsory reference under Code Civ. Proe. § 1018, which provides that “ the court may, of its own motion * * * 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 decisions 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.
Appeal from circuit court, Albany county.
' Action by William L. Avery and others against John H. Sand to set aside a deed and for other relief. A compulsory reference was granted, and plaintiffs appeal.
*511Montignani, Mallory& Elmendorf (George H. Mallory, of counsel), for appellants.
J. H. Clute, for respondent.
HERRICK, J.
—This is an appeal from an order of refer” ence made at the circuit upon the motion of'the court, and against the objection of the plaintiff, referring all the issues in the action to a referee to hear and determine. The action is one in equity. Whatever opinion I might have if this was an original question arising"under section 1013 of the Code, I feel constrained by the decisions in the cases of Barnes v. West, 16 Hun, 68, and Thayer v. McNaughton, 117 N. Y. Ill, 26 S„ R. 843, to hold that the court had no right upon its motion to make the order appealed form.
The order of reference should therefore be reversed, with f 10 costs and disbursements of this appeal»
All concur.