The question certified to this court by the Appellate Division is as follows: "Has the court in a suit upon a common-law cause of action, brought by an administrator, jurisdiction to order a reference of all the issues in the action to a referee to hear and determine the same when the administrator opposes the granting of such order and demands a trial by jury?" The court in this case ordered a reference upon the ground that the trial would involve the examination of a long account. Did the court have jurisdiction to make such an order?
In order to answer the question certified, it becomes important to examine the legislation upon the subject. The first law to which attention has been drawn is entitled "An act for the better determination of personal actions depending upon accounts." It was passed December 31st, 1768, and, so far as is material to the question under consideration, provides as follows:
"Whereas, instead of the ancient Action of Account, Suits are of late, for the sake of holding to Bail, and to avoid the Wager of Law, frequently brought in Assumpsit, whereby the Business of unraveling long and intricate Accounts most proper for the deliberate Examination of Auditors, is now *Page 272 cast upon Jurors, who, at the Bar, are more disadvantageously circumstanced for such Services; and this Burden upon Jurors is greatly increased, since the Law made for permitting Discounts in Support of a Plea of payment; so that by the Change of the Law and practice above mentioned the suits of Merchants and others upon long Accounts are exposed to erroneous Decisions, and Jurors perplexed and rendered more liable to Attaints; and by the vast Time necessarily consumed in such trials other Causes are delayed, and the general Course of Justice is greatly obstructed.
"BE IT THEREFORE ENACTED by his Excellency the Governor, the Council, and the General Assembly, and it is hereby enacted by the Authority of the same, that whenever it shall appear probable in any Cause depending in the Supreme Court of Judicature of this Colony (other than such as shall be brought by or against Executors or Administrators) that the trial of the same will require the Examination of a Long Account, either on one side or the other, the said Court is hereby authorized with or without the Consent of Parties, to refer such Cause by Rule to be made at Discretion to Referees." (4 Colonial Laws, page 1040.)
This act by its own provision was to continue in force until the first day of January, 1771, and no longer. It was, however, revived by the general assembly in February, 1771, and continued in force until the first day of February, 1780. (Laws of N Y [Van Schaack ed.] vol. 2, 1691 to 1773, p. 607.) From 1780 to 1788 I do not find that any statute was in force upon the subject; but in that year the legislature, by chapter 46, section 2, provided: "That whenever it shall appear probable in any cause depending in any court of record in this state, as well where anexecutor or executors, administrator or administrators, is, areor may be party or parties, as otherwise that the trial of the same will require the examination of a long account, either on one side or the other, the said court at any time after issue is joined in such cause, is hereby authorized with or without the consent of the parties to refer such cause by rule to be made *Page 273 at discretion to referees." In the year 1801, by chapter 90, section 2, this statute was re-enacted, and the same provision was carried into the revision of 1813 by chapter 56, section 2. It thus remained until the revision of 1828, when it was changed to read: "Whenever a cause shall be at issue in any court of record, and it shall appear that the trial of the same will require the examination of a long account on either side, such court may, on the application of either party, or without such application, order such a cause to be referred to three impartial and competent persons." (2 R.S. [2d ed.] 305, § 40.) This provision with some slight immaterial change has been carried into our Code of Civil Procedure, and remains the law until the present day. It will be observed that prior to the legislation of 1788 the statute excepted actions by or against executors and administrators; but that by the laws of that year, actions by or against executors or administrators were expressly included in the provision giving the court the power to order a reference.
The Constitution of 1777 provided that "Trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolate forever." (Article 41.) In the Constitution of 1821 the provision was changed so as to read as follows: "The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever." And in this form it was continued in the Constitutions of 1846 and 1894. It is now contended that the act of 1788 authorizing a reference in actions by or against executors or administrators was violative of the Constitution of 1777, for the reason that it deprived the parties of the right of a trial by jury, and that by reason thereof all of the subsequent revisions of that act have been unconstitutional and, therefore, void. This proposition, if sound, is far reaching in its consequences. If one party is entitled to a trial by jury, the same privilege must be accorded to the other party in an action, in order that equality before the law may be maintained. (Const. of U.S. art. 14, § 1.) If either party may object to a reference, it follows that no reference can *Page 274 be ordered except upon the stipulation of all the parties in the action.
It is a matter of common knowledge that reference, in actions of the character of that now before us, has been ordered in a great many cases as far back as the memory of any man now living extends, and I think we may assume that such references have been ordered ever since the passage of the act of 1788. No decision has ever been made adjudging the provisions of that act to be in conflict with the provisions of the Constitution, but, on the contrary, it has been acted under ever since upon the assumption that it was constitutional. The Constitution of 1777 provided that a trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever. What is the meaning of the word "used?" Does it have reference to a statute existing upon the subject, or to a custom long in use? The unwritten common law of England was largely made up of customs which had existed for a period "whereof the memory of man runneth not to the contrary." This law was in force in the colony. There was no statute specifying the cases in which parties were entitled to a trial by jury, and the word "used," therefore, must of necessity have referred to the customs then existing. What was the custom at that time? It is said that it was to try actions by or against executors or administrators involving the examination of long accounts before a jury. I do not understand such to be the fact.
The settlement of the estates of deceased persons from very early times has devolved upon other than common law courts. Our Surrogate's Court dates back to the act of March 16th, 1778. Before the Revolution, the powers and duties of the surrogate vested in the colonial governor who, by virtue of his office, was judge of the Prerogative Court, or the Court of Probates, as it was sometimes called. When the government of this province was committed to Governor Nicolls, by the Duke of York, there was framed what was afterwards known as "The Duke's Laws." Under these laws the province was divided into three ridings, in each of which *Page 275 was a Court of Sessions, composed of the justices of the peace residing therein, who held a session twice a year. To this court was committed the probate of wills, the appointment of executors and administrators, and the appointment of guardians; but if the estate exceeded one hundred pounds, all proceedings upon the probate of wills and all records in cases of administration had to be transmitted to the secretary of the province where they were required to be recorded, and where letters testamentary, of administration, and of the final discharge of executors and administrators, were granted by the governor under seal of the province. In 1686 instructions were transmitted to Governor Dongan, directing him to add to the jurisdiction of the governor, as judge of the Prerogative Court, the ecclesiastical jurisdiction of the archbishop of Canterbury, and three years later there was also added the ecclesiastical jurisdiction of the bishop of London, so far as it related to testamentary matters or the administration of the estates of intestates. Subsequently, when the colony became more extensively settled, the governor appointed deputies in the different localities, to whom were delegated the power to act for him in such cases, and these deputies subsequently became known by the title of surrogates. They took the proof of wills, issued letters of administration, appointed guardians for minors, settled and adjusted accounts of executors and administrators, compelled the payment of debts and decreed the final distribution of estates. This jurisdiction was derived chiefly from the "Duke's Laws" and the added jurisdiction of the ecclesiastical courts.
In 1743 an act was passed, under which persons entitled to a share in the estate of deceased persons were authorized to bring actions against executors and administrators to compel the payment due them of their shares of the estate, and if a plea of want of assets was entered, the court was empowered to appoint auditors to examine the accounts of the executors or administrators and to determine the amounts remaining in their hands. This law continued in force down to the adoption of the Revised Statutes. (Laws of N.Y., Smith and *Page 276 Livingston [1st ed.], 316; Street's N.Y. Council of Revision, 281.) The provisions of this act and the jurisdiction exercised by the Court of Chancery furnished a more effectual remedy than the Prerogative Court afforded, and the practice of accounting in the Court of Chancery was more generally resorted to, except when an executor or administrator filed his account with a view of obtaining his discharge, the accounting took place before the Prerogative Court.
Disputed claims presented against the estates of deceased persons were ordinarily determined by arbitrators, and this practice, I presume, suggested to the revisers our modern statute providing for an offer of reference of such claims before action brought. But these claims and those made by executors and administrators against other persons, as well as actions by or against guardians, were determinable in the courts, and where they involved the adjusting of long accounts by an action for an accounting.
One of the most ancient forms of action at common law was the action of account. Formerly it lay only in cases where there was either a privity in deed as against a bailiff or receiver, or a privity in law as against a guardian in socage, and so strictly was the privity of contract construed that an action did not lie by or against executors or administrators, but by act of Parliament it was first extended to the executors of a merchant (13 Edw. III, ch. 23), then to executors of executors (25 Edw. III, ch. 5), and then to administrators (31 Edw. III. ch. 11), and finally by 4 Anne, ch. 16, it was extended to executors and administrators, and by the same statute arbitrators were given the power to administer oaths to the witnesses. Subsequently this form of action fell into almost total disuse in England, chiefly for the reason that the Court of Chancery assumed jurisdiction in matters of account, and it was found that that court furnished to parties a more effectual and speedy remedy, and, consequently, it was more frequently resorted to in such cases, but in this country the action for an account, with some modifications, has continued in use until the present time and actions *Page 277 between copartners and personal representatives of deceased persons against the surviving members of a firm are not uncommon. It was continued as to executors and administrators by the Revised Statutes: "Actions of account and all other actions upon contract, may be maintained by and against executors, in all cases in which the same might have been maintained, by or against their respective testators." The next section includes administrators. (2 R.S. 113, §§ 2, 3.) It is thus apparent that cases of this character were maintainable as an action for an account ever since the fourth of Anne, and that that form of action was resorted to, except in cases in which the action was brought in the Court of Chancery. The practice adopted may be briefly stated: If issues were joined raising other questions than the amount due, such issues were tried by the jury and if found against the party raising them the judgment entered wasquod computet. Thereupon an interlocutory judgment was entered and auditors were appointed to take the account. The history of this form of action and the practice thereunder is so clearly stated by Blackstone that, I think, it should here be repeated: "If no account has been made up, then the legal remedy is by bringing a writ of account de computo; commanding the defendant to render a just account to the plaintiff, or show the court good cause to the contrary. In this action, if the plaintiff succeeds, there are two judgments: the first is that the defendant do account quod computet before auditors appointed by the court; and when such account is finished then the second judgment is that the defendant pay the plaintiff so much as he is found in arrear. This action, by the old common law, lay only against the parties themselves and not their executors; because matters of account rested solely on their own knowledge. But this defect, after many fruitless attempts in Parliament, was at last remedied by statute 4 Anne, c. 16, which gives an action of account against executors and administrators. But, however, it is found by experience that the most ready and effectual way to settle these matters of account is by bill in a *Page 278 court of equity, where a discovery may be had upon the defendant's oath without relying merely upon the evidence which the plaintiff may be able to produce." (3 Bl. Com. 164.) In the case of McMurray v. Rawson (3 Hill, 59, 68) COWEN, J., says, with reference to this practice and the independent issues raised, "if found against the defendant or he suffer default, the judgment is quod computet; but the jury cannot take the account. The judgment is but interlocutory and the cause goes to auditors, before whom a new course of pleading might be taken up at common law." This practice, except as to the change made in 1788 in which referees took the place of auditors, appears to have continued until the Revised Statutes, in which it was continued by the provision: "When an action of account shall be brought * * * and judgment shall be rendered that the parties account, or that the defendant account to the plaintiff, the cause shall be referred to referees in the same manner, and subject to the same provisions as herein prescribed in case of a long account." (2 R.S. [2d ed.] 306, § 50. See, also, Kelly v.Kelly, 3 Barb. 419, 423; 1 Mallory Entr. 67, 68; 1 Brownl. Entr. 51, 53; Baxter v. Hozier, 5 Bing. N.C. 288; 1 Bac. Ab. 43, Of Accounts of Auditors; Brick's Estate, 15 Abb. Pr. 12; 1 Story's Com. on Equity, §§ 441, 447.)
It is thus apparent that the practice of determining accounts in this class of cases by auditors was in existence long before the adoption of the Constitution of 1777, and it is quite possible that this explains the reason for excepting executors and administrators from the provisions of the act of 1768, it not then being thought wise to dispense with the auditors. In 1788, however, executors and administrators were placed upon the same footing as other suitors and the reference to referees, instead of auditors, was authorized. This statute did not, therefore, deprive parties of the right to a trial by jury in cases in which the trial by jury had theretofore been used.
A compulsory reference should not be ordered unless it clearly appears that the trial will necessarily involve the examination and auditing of a long account. If it does so appear *Page 279 a reference should be ordered. It is not possible for jurors to carry in mind numerous items composing a long account, and determine intelligently the amount that should be awarded to either party. This difficulty was recognized in the preamble of the act of 1768, and it has been confirmed by experience. If independent issues are raised by the pleadings or issues the determination of which may render an accounting unnecessary, they should first be tried in the proper forum, if in a common-law case before a jury, and if, upon their determination an accounting is necessary, it should be referred to a referee or referees to determine the same.
The question as to whether the trial of this case will necessarily involve the examination and auditing of a long account, or as to whether independent issues are raised by the pleadings, have not been certified to us. The question, as certified, cannot be answered correctly either in the negative or affirmative, for the reason that issues may be raised in a pleading which are independent of those involving the examination of a long account.
Under the provisions of the Code we are limited in our review to the questions certified, and without deciding the questions not certified we cannot determine whether the order should be affirmed or reversed. Under the circumstances, therefore, the appeal should be dismissed, the costs to abide the final result of the action.