This action was brought to recover the sum of $994.50, being the unpaid portion of the annual salary of the plaintiff's intestate as priest of the defendant, a religious corporation, as well as upon an account for moneys lent, paid out and expended. The answer, after putting at issue substantially all the allegations of the complaint, sets forth a counterclaim for moneys had and received. Upon defendant's motion an order was made at Special Term referring all the issues to a referee to hear and determine the same, upon the ground that a long account was involved. The plaintiff, as administrator, opposed the motion for a reference, *Page 280 demanded a trial by jury and appealed from the order to the Appellate Division, where it was reversed upon the ground that a compulsory reference cannot be had in a common-law action when an executor or administrator is a party, because the Constitution gives the right of trial by jury in such cases. The Appellate Division, however, certified the following question to this court: "Has the court in a suit upon a common-law cause of action, brought by an administrator, jurisdiction to order a reference of all the issues in the action to a referee to hear and determine the same when the administrator opposes the granting of such order and demands a trial by jury?"
In order to thoroughly understand the nature and extent of this question it is necessary to read it in connection with the pleadings. (Baxter v. McDonnell, 154 N.Y. 432.) When thus read the question means, can such issues as are joined by the pleadings in this action be referred when the plaintiff, a sole administrator, opposes the application and demands a trial by jury? If the liability of the defendant was established or conceded and the only issue was the amount of the recovery, a question would be presented that I shall not discuss, because it is not before us. The issues referred by the order of the Special Term involved the liability of the defendant to the plaintiff for the unpaid salary as well as upon an account and also the liability of the plaintiff to the defendant upon the cause of action alleged in the counterclaim.
The present Constitution of this state provides that "The trial by jury, in all cases in which it has been heretofore used shall remain inviolate forever." (Art. I, § 2.) The provision in the Constitution of 1846 was precisely the same. The language of the Constitution of 1777 was as follows: "Trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolate forever." (Art. 41.)
At the time our first Constitution was adopted, the following statute was in force, it having been first enacted in 1768 *Page 281 for a limited period, and in 1771 revived and extended until February 1st, 1780: "WHEREAS instead of the antient Action of Account, Suits are of late, for the sake of holding to Bail, and to avoid the Wager of Law, frequently brought in Assumpsit, whereby the Business of unraveling long and intricate Accounts, most proper for the deliberate Examination of Auditors, is now cast upon Jurors, who, at the Bar, are more disadvantageously circumstanced for such Services; and this Burden upon Jurors is greatly increased, since the Law made for permitting Discounts in Support of a Plea of payment; so that by the Change of the Law and practice above mentioned the Suits of Merchants and others upon long Accounts are exposed to erroneous Decisions, and Jurors perplexed and rendered more liable to Attaints; and by the vast Time necessarily consumed in such Trials other Causes are delayed, and the general Course of Justice is greatly obstructed.
"BE IT THEREFORE ENACTED, etc., that whenever it shall appear probable in any Cause depending in the Supreme Court of Judicature of this Colony (other than such as shall be broughtby or against Executors or Administrators) that the trial of the same will require the Examination of a Long Account, either on one side or the other, the said Court is hereby authorized with or without the Consent of Parties, to refer such Cause by Rule to be made at Discretion, to Referees, * * *." (2 Van Schaack's Laws of New York, ch. 1363; Id. ch. 1478; 4 Colonial Laws, p. 1040; 5 id. 195.) In 1772 this statute was extended to all the common-law courts of the colony, and in 1788 it was revived by the legislature of the state, but the exception as to executors and administrators was omitted, and it was expressly enacted that the act should apply to such parties, eo nomine. (5 Colonial Laws, p. 293, L. 1788, ch. 46.)
According to section 1013 of the Code of Civil Procedure, the right to refer an action involving the examination of a long account is general and there is no exception as to executors or administrators. The Revised Statutes contained *Page 282 a similar provision. (3 R.S. [6th ed.] 520.) For a more specific history of legislation upon the subject and an able discussion of the power to refer, reference is made to the opinion of Judge EARL in Steck v. Colorado F. I. Co. (142 N.Y. 236), which is relied upon by the respondent as controlling.
It is argued in behalf of the appellant that the word "cases," as used in the section of the Constitution relating to trials by jury, means classes of cases and not particular instances; that being used in a generic and not in a specific sense, it relates to the nature of the case, not to its incidents, and hence whenever the nature of an action is such that it cannot well be tried before a jury, the legislature has power to authorize the courts to refer.
This is an enticing argument, which, if adopted by us, would lead to a result not only convenient in this and similar cases but in accord with the practical construction of the legislature for a long period of years. I find great difficulty, however, in yielding to it. The first Constitution established trial by jury "in all cases in which it hath heretofore been used in the colony of New York," and as it had always been used in actions at law when an executor or administrator was a party, with one unimportant exception, the intention of the framers to continue that rule seems clear and conclusive. In the colony, as we have held, there was no authority to refer actions at law except the ancient and virtually obsolete action of account, to be noticed hereafter, unless as authorized by the act of 1768. (Steck v.Colorado F. I. Co., 142 N.Y. 236.) As early as 1683 it was provided by the Charter of Liberties and Privileges granted by the Duke of York to the inhabitants of New York "that all trials shall be by the verdict of twelve men." (Charter, Appendix No. 2, 2 Laws of 1813; 1 Colonial Laws, p. 111.) We further held in theSteck case that the act of 1768 was virtually a part of the Constitution of 1777, so far as the power to refer actions at law is concerned. This is apparent not only from the prevailing opinion, but is emphasized by the following quotation from the *Page 283 dissenting opinion: "The act of 1768 excepted from its operation suits `brought by or against executors or administrators.' This exception was expressly abrogated in the act of 1788 and the subsequent statutes of the state. But this abrogation of the exception was inoperative and in violation of the Constitution, if you say that no compulsory reference can be authorized in any case not referable under the colonial laws, although the case is within the principle and policy upon which these laws were based. If the Constitution restricts, as is claimed, the power of compulsory reference to the exact cases specified in the colonial act of 1768, then I perceive no escape from the conclusion that whenever now an executor or administrator is a party to an action, it cannot be compulsorily referred, although the action may be on contract and involves a long account on either or both sides." (Id. p. 259.)
When the Constitution of 1777 was framed, as the history of that period shows, the right of trial by jury was regarded as of supreme importance, and the framers provided that, as theretofore used, it should remain inviolate forever. The only measure of usage was the universal rule that all actions at law should be tried before a jury, except the antiquated and worn-out action of account, even then seldom resorted to, and the act of 1768. That act contained the only relaxation of the general rule, and it expressly excepted from its operation the representatives of dead men who could not protect themselves. The language of the Constitution shows an unmistakable intention to establish in the state the rule previously existing in the colony, and that rule did not permit the reference of such actions. Unless the act of 1768 was virtually embodied in the Constitution, as we held in the Steck case, there was no authority to refer any action at law whatever, except that "most difficult, dilatory and expensive action," known as the technical action of account, which could be brought only against bailiffs, receivers and guardians in socage and at last against merchants. Judge BRONSON, writing sixty years ago, said that only two actions of that *Page 284 kind had ever been brought during the history of the state, and that no more than a dozen such had been brought in England during the two centuries then preceding. (McMurray v. Rawson, 3 Hill, 59, 62.) The rule of the colony was to try every common-law action, except the action of account, before a jury until the change was made in 1768. Until then it was unimportant whether the action involved the examination of a long account or not, for it could not be tried before auditors or referees except by the consent of the parties, although a computation of the amount due could be made by a referee, after the liability had been established. Whether the trial was long, inconvenient and expensive, or whether the action was of such a nature that a jury could not do justice to the parties, still it could not be referred without consent until the statute, which does not affect executors or administrators, changed the rule. The right to a trial by jury, as used in the colony when the Constitution of 1777 was adopted, applied to all actions at law brought by or against executors or administrators. It was only because the act of 1768 was virtually a part of the Constitution that there was authority to refer any action at law, with the unimportant exception of the disused action of account. If it was a part of our first Constitution, the express exception as to executors and administrators still exists, for it goes without saying that the provision of that instrument relating to the subject has continued with the same meaning and almost in the same words in every Constitution adopted since. I think that one of the most important and permanent sections of the fundamental law of the state and one deemed more important when it was first adopted in 1777 even than at the present time, should not be given a loose or strained construction in order to meet an emergency or promote convenience, nor bent so as to yield to usage however venerable. "No encouragement should be given to the belief, now widely prevalent, that if an unconstitutional law can be acted upon long enough to make it a hardship to declare it void, the courts will not interfere." The maxim ita lex scripta est should control, and the words of the Constitution *Page 285 should not be departed from, but a direct, simple and exact construction given, regardless of custom or convenience.
The order appealed from should be affirmed, with costs, and the question certified answered in the negative.
PARKER, Ch. J., GRAY, CULLEN and WERNER, JJ., concur with HAIGHT, J.; O'BRIEN, J., concurs with VANN, J.
Appeal dismissed.