One of the defendant’s counterclaims was a common-law claim. This, under the Code, § 976, gave him the right to a trial at common law, if he made his application as prescribed by the Code. § 970. Mackellar v. Rogers, 109 N. Y. 468; 16 St. Rep. 406. This counterclaim was therefore triable by a jury, unless it involved a long account, in which case it was referable. To preserve his rights to a common-law trial, the defendant was compelled to move to frame issues. This he did, and the plaintiff opposing the application, it was denied. The affidavit of the plaintiff in opposition states that the defendant was not entitled to a jury trial, but that the action was referable. But, though the affidavit is long, it fails to state or show the only thing which would justify a reference; that is, that the. action involved a long account. As the ease stands now, the defendant’s application has been denied, but no order of reference has been made, and none may ever be made unless the plaintiff should apply for it. If the action is prosecuted, the cause will be brought for trial before the court at special term, and the defendant deprived of the mode of trial prescribed by law. We think that the defendant’s motion should have been granted as of course; that the plaintiff, if it believed the counterclaim to involve a long account, should either have resisted it by a counter application for a reference, or by making a similar application after the order framing issues,— an application to which the order framing issues would not be a bar.
The order appealed from should be reversed, with $10 costs and disbursements, and motion granted, with $10 costs, without prejudice to any application that plaintiff may make to refer the action.
All concur.