The respondent moved to dismiss the appeal on the ground that the order is not appealable. The motion to dismiss was argued in conjunction with the appeal, and should be first disposed of.
It is conceded that such an order could not be reviewed on appeal to this court before judgment, under the provisions of section 11, of the Code, as they stood prior to the amendment of 1870.
That section originally enacted, conferred upon this court exclusive jurisdiction to review upon appeal every actual determination of certain courts.
(1.) In a judgment, and on such appeal to review certain intermediate orders.
(2.) In a final order in a special proceeding or on a summary application after judgment.
Amendments to this section were made from time to time, viz.: in 1849, 1851, 1852, 1857, 1862, 1865, 1866, 1867, 1869, 1870. In 1851, two new subdivisions were added, viz., in an order which in effect determines the action, and, “ 4,” in an order granting a new trial, &c.
In 1852, the subdivisions were reduced to three •, and 1867, a new subdivision “4” was added, declaring -in substance that whenever the decision of any motion in the supreme court involved the constitutionality of a law, an appeal should lie. The concluding paragraph of this new subdivision is as follows: “And such appeal, at the *158general term, and at the court of appeals shall be heard as a non enumerated motion.”
In 1867, a further subdivision was added also numbered “4,” in the following words : “An appeal from any order to the court of appeals, affecting a substantial right, arising upon any interlocutory proceeding, or upon any question of practice in the action, may be heard as a motion, and noticed for hearing for any regular motion day of the court.”
This subdivision, (No. 4,) although not in terms declaring that appeals should be allowed from orders arising upon interlocutory proceedings, or upon questions of practice, yet recognized such orders as the subjects of appeals, and was to a considerable extent understood by the profession, as extending by implication the right of appeal, so as to embrace all such orders without regard to the limitations in subdivisions 2 and 3, and appeals based on such understanding were brought into this court.
It was held, however, in those cases, that by the true construction of the subdivision as amended, the right of appeal was not extended, and that its only effect was to regulate the manner of hearing such of the appeals theretofore authorized as should come within the specifications of the new subdivision.
This decision was necessarily based upon the frame of the subdivision which varied materially from that of the preceding subdivisions in which the orders subject to review were enumerated, and purported simply to prescribe how certain appeals might be heard; and also upon the consideration that no extension of the right of appeal must necessarily be implied, because the order from which appeals were already authorized, or the rights affected by such orders, might arise on interlocutory proceedings or questions of practice, and therefore, full effect could be given to the subdivision, without any such implication.
In 1869, subdivision 2 of section 11, was amended by *159adding to the enumeration of appealable orders, those striking out answers or pleadings, and a further amendment was made to subdivision 4, by adding to the class of appeals which might be heard as motions, appeals from orders to strike out answers or pleadings.
After this amendment, this question was again raised in this court, which adhered, to its former decision. (Tabor agt. Gardner, 41 N. Y., 232.)
Subsequent to this decision, September Term, 1869, viz. s at the session of 1870, subdivision four was again amended and now reads as follows :
“ 4. In an order affecting a substantial right, not involving any question of discretion, arising upon any interlocutory proceeding, or upon any question of practice in the action, including an order to strike out an answer, or any part of an answer, or any pleading in an action, such appeals whether now pending or hereafter to be brought, may be heard as a motion and noticed for hearing for any regular motion day of the court.”
It is to be observed that by this amendment the frame of the subdivision is changed so as to make it conform to the frame of the subdivisions immediately preceding it, which enumerate the cases in which appeals will lie, and thus read as a continuation of such enumeration instead of being,, as it was, before the amendment, a distinct and independent provision. The first clause of section eleven, declares that this court shall have exclusive jurisdiction to review determinations of certain courts, and then the subdivisions enumerate what"determinations,” viz.: u First In a judgment. Second. In an order-which prevents a judgment. Third. In an order made after judgment. The words: “In a judgment,” “In an order,” in all the subdivisions, clearly relate to words “ actual determination,” which precedes them, and not to any thing which follows:; and now by the amendment in question, subdivision four, is made to begin with the same formula. “In an order” *160not involving any questions of discretion, &c. Thus connecting it precisely in the same manner in which the preceding subdivions are connected with the clause which confers jurisdiction.
This is a marked and significant change m the frame of the subdivision, totally useless for any,purpose other than that of thus connecting it with the first clause- of the section, and causing it to read as a further head of jurisdiction. If the intention of its author was that the former interpretation of the subdivision should be retained, such intention so far from being manifested, is effectually obscured by the1 change.
It is, also, to be observed, that a qualification is introduced by the amendment into subdivision four, which is not to be found in either of the other subdivisions. They all require that a substantial right be involved, but subdivision four, as amended, requires in addition, that no question of discretion be involved.
This additional qualification may well have been inserted for greater caution in a section intended to extend the right of appeal to a new class of orders in respect to which, rules had not been established by adjudication, they never before having been appealable; but if, as is claimed, the only effect of the amendment is to further regulate the mode of hearing appeals already authorized, then the only change effected - by the amendment is that which results from the introduction of the words li not involving any question of discretion.” For it was already provided, .that all the appeals which, as the respondent claims, are referred to in the subdivision, should be heard as motions. If, therefore, the respondents construction be correct, the only effect of the amendment was to distinguish as to the mode of hearing between orders depending upon discretion, and those not involving discretion, and to provide, that appeals from orders of the latter class only, might continue to be heard as motions. An amendment which could not be necessary or *161effectual for any purpose, except upon the assumption that but for such amendment, orders involving discretion, could foe heard as motions, and leaving it clearly to be implied that when questions of discretion were to be reviewed, the appeal must be heard in its order on the calendar.
We cannot presume such to have been the understanding, or intention of the legislature. If it had been the insertion of the word “ not involving any question of discretion,” without any change m the frame of the subdivision, would have rendered the construction claimed by the respondent much less difficult.
The changes in the frame and language of the subdivision, are too radical and significant to leave any doubt as to the intention of the legislature to extend the right of appeal to all interlocutory orders in actions affecting, substantial rights, and not within the discretion of the court below, though not coming within the classification in subdivisions 2 and 3. Criticism may be made upon some inaccuracy of language, and punctuation. The insertion of a colon or period, or of the word “and,” before the word “such appeals” would remove the principal ambiguity claimed to exist. But read in connection with the residue of the section and in the light of the previous enactments and the adjudications thereon, the intent of the amendment is too plain to be frustrated by mere minor defects in punctuation or phraseology.
The effect of the order appealed from, was to deprive the defendants of a trial by jury. If they had an absolute right to such a trial, and the court below had not the legal right to deprive them of it, and substitute a trial by a referee, then the order affects a substantial right and did not involve discretion. If there was no power to make the order, no discretion could be exercised.
The question whether the order is appealable, as well as the result of the appeal, therefore, depend upon this question of power.
*162The Code, section 271, authorizes the reference of any action, the trial of which shall involve the examination of a long account on either side. This provision is subject, however to the limitation imposed by section 2 of article 1, of the constitution of the state of Mew York, which declares Cl that the trial by jury in all cases, in. which it has been heretofore used, shall remain inviolate forever.” The same provision is contained in the constitution of 1322, (Sec. 2 art. 7,) and in the constitution of 1777, (§ 41.)
The right of trial by jury as it existed in 1771, has here-fore been continued and preserved to this day, and no statute, .subsequently passed can impair it.
All common law actions have been triable by jury, in this state, as far back as its jurisprudence extends, subject only to the exceptions of actions on contract, involving the examination of long accounts, which actions might be referred. This exception existed at the time of the adoption of the constitution of 1777, and 1822, (See act of the colonial legislature of 1768 ; Van Schaick’s Laws of New York, vol. 2 p. 517; act of 1771, Id. p. 607; act of 1772, Id. p. 642; act of 1788, Jones & Varicks Laws, vol. 2 p. 269; act of 1801, Kent & Radzliffs Laws, vol. l. p. 346 ; 1 R. L., 1813, p. 515.)
It has been settled by repeated decisions of the courts of this state that under those statutes, compulsory references could only be ordered in actions on contract. (Dederick agt. Riehly, 19 Wend., 108; Green agt. Patchin, 13 Wend., 294; Yates agt. Russell, 17 J. R., 461); and, that the right of trial by jury, in all other common law actions, was preserved.
By the Revised Statutes (2 R. S., 384, lst ed.), and the act of 1845 (ch. 163), the power to order a reference, without consent appearing, was expressly confined to causes founded on contract - involving the examination of long accounts. Thus at the time of the adoption of the constitution of 1846, the right of trial by jury in all other common law actions, *163was, and had been from the time of the foundation of the state, unimpaired, and it was by the constitution declared to be inviolate forever.
The present action is clearly a common law action, and :t follows that unless it can be held to be one founded on contract, the power to refer it compulsorily, does not exist even though a literal construction of section 271 of the Code, might seem to authorize such a reference.
The plaintiff, by his complaint, demands judgment for the value of two railroad bonds, and for divers sums of money which he claims to have advanced to the defendants, with interest, basing his claim upon the allegations as to each of the items that it was paid to the defendants on the faith of representations made by them of existing facts; that all these representations were false, and known by the defendants to be false, and made with intent to deceive and defraud the plaintiff. That on discovering the fraud the plaintiff demanded the return of his bonds, and the re-payment of said sums of money, but that the defendants refused to comply with such demands.
It is true that there are various allegations throughout the complaint of promises and undertakings made by the defendants, but these allegations are set out merely by way of inducement, and as showing the occasion and materiality of the representations. There is not throughout the whole complaint, an allegation that any one of the items claimed to be recovered, was paid in consideration of such promises, nor is there any demand for damages for their non-performance. On the contrary, the contract, if any appears by the complaint, is disaffirmed by the demand of the return of the bonds and money fraudulently obtained.
The action must, therefore, be held to be one founded on tort, and not referable against the will of either party. It has been contended that upon the facts alleged, some recovery might be had on the contracts referred to in the complaint. But even if this were so, it is clear that if *164referred and th.e facts alleged were found by the referee to' be true, a judgment based upon the tort could properly be rendered, and that to enforce such a judgment execution against the person could issue; and indeed the facts alleged would be sufficient to sustain a criminal prosecution.
It is further contended that the defendants have by interposing a counter-claim consisting of a long account, rendered the examination of such account necessary. If does not follow that the action can be referred for that reason. If the action is from its nature not referable, the answer cannot make it so. Should the counter-claim ever require examination, a reference can be ordered as to it after trial of the issues. • j
The motion to dismiss the appear should be denied, and the order appealed from reversed with costs.