Cuthbert v. Hutchins

Williams, J.:

The order should not have been granted without an inspection of the pleadings. The court should have known precisely what the issues involved in the action and necessary to be tried Were. The affidavit made by one of the plaintiffs, and upon which alone this order was made, did not clearly and definitely disclose the nature of the cause of action or defense. The' court might infer something as to the issues from the affidavit, but it should not have been left to inference. When the right of the defendant to a trial by jury was or might have been involved, the court should have been clearly satisfied that the issues were such as that the right to compel a reference existed before making the order. We are not inclined to encourage this careless kind of practice. Moreover, the court upon this affidavit had no power to deprive the defendant of the usual notice of trial and require him to go to trial upon a notice of two days; and the very terms of the order itself implied a doubt as to whether an accounting would be necessary by providing that if an accounting became necessary the referee should take the same. Neither was there, any basis in the papers for compelling the defendant to pay the plaintiffs ten dollars costs of the motion. At most, these costs should have been made to abide event..

The order appealed from should be reversed, with costs to the appellant of the appeal, and the motion denied, with ten dollars costs.

Van Brunt, P. J., Patterson, O’Brien and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.