While it is true that the question as to whether or not an action is in its nature one in which the trial can be without the consent of the parties before a referee instead of before a jury must be determined by the complaint, that question has reference merely to the nature of the action, as it is only an action to recover on a contract that can be so referred. Where the action is to recover upon a contract to be tried before a jury, if any issue in the case involves- the taking of an account which cannot be properly determined by a jury, a reference should then be ordered. It is quite clear that an action to recover damages for a tort could not be referred although it set up a defense which involved the taking of a long account. In many cases where a reference has been sustained on the pleadings no account appeared to be involved, but upon proof by affidavit that an account was involved in the determination of the issues presented by the pleadings a trial before a referee was ordered and sustained. The defendants’ counterclaim is directly connected with the cause of action alleged in the complaint, they both arising out of the same series of transactions. The action is to recover on a contract and is in its nature referable, the only question to be determined being whether or not from the nature of the pleadings and the proof necessary to sustain them such an account is involved as will make it impossible for a jury to satisfactorily dispose of the *558issues. In an action at law where there can be but one trial and where a verdict will have to be rendered on a trial either for the plaintiff or defendant, it is impracticable to split up the issues and order an accounting as distinct from the trial of the main issue in the action. Thus, if upon any of the issues presented an accounting is necessary, the only practical method is to order all the issues to be tried before a referee. I think this is such a case, and that the order below was properly granted.
I, therefore, dissent.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.