This is an appeal from an order directing a compulsory reference of the issues raised by the pleadings on the ground that the examination of a long account is involved.
The account involved is embodied in the two counterclaims set up in the defendants’ answer.
These counterclaims declare' causes of action on contract, to-wit: Money had and received by the plaintiff for the use of the defendants in the- amounts of $881.21 and $537.28- respectively, and which amounts are composed of about 200 separate and distinct items spread over a period of two years.
The third counterclaim sets up a cause of action for goods sold and delivered -to-the amount of $89.18, and the reply admits the count, but pleads payment thereof.
The issue thus raised by the plaintiff enures to his benefit. He could claim a jury trial on that issue. But he applied for the reference, and thereby waives his right of a jury trial. It, does not lay with the defendants to demand a jury trial as plaintiff’s right.
The case of Peabody v. Cortada, 50 N. Y. St. Repr. 743, which holds,, that where the complaint sets up several causes of action, one at least of which is not referable, a compulsory reference should not be granted, does, therefore, not apply to- this case.
The causes of action in the defendant’s answer not sounding in fraud or deceit, the rule that actions in tort are not referable does hot apply.
Order appealed from affirmed, with costs.
O’Dwyeb, J., concurs.
Order affirmed, with costs.