I am unable to concur in the views expressed by Mr. Justice MoLaughlin in the opinion delivered by him in this case. I am not satisfied that a consideration of the allegations of the complaint and answer, casual or otherwise, is sufficient to show that the court was justified in referring the issues thus raised. On the contrary, I am ot the opinion that such a course was not a. proper exercise of the power of the court to order a compulsory reference. The motion in this case was made by the plaintiff, and was opposed by the defendant on the ground that it did not appear that the trial of the action would involve the examination of a long account, and that the trial involves a difficult question of law. Section 1013 of the Code authorizes the court, of its own motion, or upon application of either party, without the consent of the other, to 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 *70require the decision of a difficult question of law. In an opinion delivered by the Court of- Appeals in Steck v. C. F. & I. Co. (142 N. Y. 236) the history of legislation upon this subject is exhaustively discussed, and, as stated in the syllabus of that case, it was there held that “ the question as to whether an action is referable without ’ consent of both parties is to be determined from the complaint alone. If the cause of action there set forth is not referable without consent and the same is put in issue, defendant is entitled to trial by jury, and the action is not made referable by anything set up in the answer.” In summing up the discussion there had, the court again says (pp. 250, 251) : “ If the plaintiff brings his action upon a long account, then it is such as was referable prior to 1777, and, as the examination of a long account is required on his side, the defendant cannot defeat a reference by anything he may set up in his answer by virtue of the statutes allowing set-offs and counterclaims. If the plaintiff’s cause of action be upon contract for a. definite sum of money or for damages 'ex contractu, and his cause of action be not gainsaid by the defendant, and the defendant sets up a counterclaim which requires the examination of a long account, then the case is such as would have been referable under the act of 1768. But, if in such actions^the plaintiff’s cause of action be disputed, then a case is presented which, prior to 1777, gave the parties the absolute right to jury trial, and that right cannot be taken-away or destroyed by anything which the defendant may set up in his answer.” This is said to furnish the rule for the guidance of courts in the decision of such question. It has also been held that the account to be examined must be the immediate object of the action or the ground of defense; that it must be directly, not collaterally, involved. (Camp v. Ingersoll, 86 N. Y. 433.)
We might well rest our decision upon these two cases, as. they furnish, as I view them, authority which requires at the hands of this court the reversal of the order appealed from. The action, as shown by the analysis of the pleadings made by Mr.- Justice McLaughlin, is brought upon a contract to recover a sum of money. It is, therefore, an action ex contractu, and an account is not the immediate object of the action. The answer of the defendant, in the view expressed in the prevailing opinion, puts in issue ■ every material allegation of the complaint, or, in the language of the *71Court of Appeals, the cause of action is “ gainsaid ” or “ disputed,” and there is no counterclaim, alleged. It seems to me that the case is brought squarely within the rule laid down in Steck v. C. F. & I. Co. (supra), and that the ordering of a compulsory reference was error. The action is not brought “ upon a long account ” or upon an account in any sense, but is upon contract, for a definite sum of money as damages, and the cause of action is “ gainsaid.”
Another consideration also leads to the reversal of this order. The moving papers fail to show that the trial will necessarily require the examination of a long account, which is a prerequisite to the ordering of a compulsory reference against the objection of the other party. Such fact does not appear upon the face of the pleadings, and there is no statement in the moving affidavit that the different items of the matters which are insisted upon as an account are to be separately litigated, or that they are to be laid before the trial court for any purpose except as a basis for computation of the amount due to the plaintiff. (Cassidy v. McFarland, 139 N. Y. 206, 207.) The affidavit contains a general statement that the trial of this action “ will involve the examination of a long account containing many items of moneys,” etc., but there is no allegation of facts tending to show that the items will be litigated, which is the material fact to appear, and the defendant’s attorney denies the conclusion thus stated in the moving papers. This court in a recent decision (Importers & Traders’ Nat. Bank v. Werner, 54 App. Div. 435) has passed upon both branches of this question, and under the authority of that decision the order appealed from cannot be sustained.
It follows, if I am right in the views expressed, that the motion should be denied, with costs, and the order appealed from reversed, with ten dollars costs and disbursements.
Laughlin, J., concurred.
Order affirmed, with ten dollars costs and disbursements.