FORM No. 1819.

Affidavit to oppose motion for reference.7

[Formal parts as in Form 1816 to the *.]

II. That deponent has fully and fairly stated the case in this action to his counsel A. T., who resides at No.

street, in

the city of and that the trial of the issues of fact in this cause will, as deponent is advised by said counsel, after such statement, and verily believes [state objection as thus or in Forms below], require the decision of difficult questions of law. That [here state, unless the moving affidavits correctly state it, the nature of the issue, as in Form 1816, and that] the following will be insisted on on behalf of said plaintiff [here briefly state deponent's points of law3]. And deponent is informed and believes that the defendant's counsel will urge [here briefly state his anticipated questions of law], which points, as deponent is advised by his said counsel, are material to the cause, and are difficult, especially in their application to the facts in this case. [Date.] [Signature.]

FORMS NOS. 1820-1822.- STATEMENTS SUITABLE TO INSERT FORE

GOING FORMS.

FORM No. 1820.

Denial that account is involved.

[Add to or substitute for part of last Form:] II. That the issue joined herein will not require the examination of a long account within the meaning of the statute; that all of the goods referred to in the complaint were sold at one time, and as one transaction, and the alleged credit is a payment made by defendant at said time, and then deducted from the amount to be due from defendant to the plaintiff; and there are no other items of charge or credit involved in the issues herein.

ence, although the schedule set forth services in fifty-six different matters, by an attorney. Two items were excepted from the admission contained in the stipulation.

7 Where counterclaims are interposed, the right to a reference in the complaint is defeated. Robinson v. N. Y., L. E. & W. R. R. Co., 55 N. Y. Super. Ct. 152; aff'd, 109 N. Y. 658.

If the cause of action set forth in the complaint is not referable, the interposition of an independent counterclaim cannot make it so. Steck v. Colorado Fuel & Iron Co., 142 N. Y. 236. If, however, plaintiff's cause of action is admitted, a reference will be

ordered on a counterclaim which involves a long account. Kindberg v. Chapman, 115 App. Div. 154.

8 Questions of admissibility of evidence are questions of law within the rule. Goodyear . Brooks, 4 Robt. 682, 2 Abb. Pr. (N. S.) 296.

9 Unless apparent on the face of the pleadings, these questions should be pointed out specifically and so as to show their real difficulty, as well as how they are expected to arise. Lee Coal Co. r. Meeker, 43 Misc. 162, 88 N. Y. Supp. 190; Hibbard v. Comm. All. L. Ins. Co., 4 Misc. 422, 24 N. Y. Supp. 332; aff'd, 141 N. Y. 549.

FORM No. 1821.

That other issues should be tried before the account.10

That this action is brought by the plaintiff as administrator for an alleged accounting [claiming such as administrator of J. E. F., deceased, who in his lifetime was in copartnership with the defendants]; that the answer, among other defenses, sets up a joint release of all claims of the plaintiff against the defendants; that no reply has been served herein, and deponent is advised that this issue is not referable until the validity of that release has been passed on by the court; that if said release shall be held to be a valid release, it would be a bar to any accounting herein, and said accounting would be unnecessary.

FORM No. 1822.

Where fraud is set up.

That this action is brought upon an [insurance policy alleged to have been made by defendants: and that the only items of account are the items of damage, which plaintiff claims he has sustained by a peril insured against]. And that the defense [or, one of the defenses] set up by the defendants is fraud on the part of the plaintiff, in [here briefly disclose it], as more fully appears by reference to their answer herein.11

FORM No. 1823.

Stipulation agreeing on nomination of referee.12

[Title of court and cause.]

Stipulated that in case the within motion be granted, the reference shall be to R. F., Esq., of

[Date.]

[counselor at law].

[Signatures of attorneys or of parties.]

10 From an unreported case in which an order granting a reference notwithstanding this affidavit was reversed, the General Term holding that the issue as to the release should be tried before an accounting should be ordered; s. P., Rutty r. Person, 12 Abb. N. C. 352, 49 N. Y. Super. Ct. 55.

11 This is an answer to the motion in such a case. Freeman v. Atlantic Mut. Ins. Co.. 13 Abb. Pr. 124.

If the foundation of the action and the substantial issue is fraud, the fact that the examination of a long account is involved does not justify a

compulsory reference. Clarke v. Candee, 29 Hun, 139, and cases cited; Morrison v. Horrocks, 40 id. 428. See, also, note 98, supra; Morrison v. Van Benthuysen, 103 N. Y. 675; Untermeyer v. Beinhauer, 105 id. 521. But the fact that fraud of defendant is alleged in the complaint, is not always an answer. Atocha v. Garcia, 15 Abb. Pr. 303.

12 Where such a stipulation is made, it may be stated in the moving affidavits that no party is an infant See Code Civ. Pro., § 1011.

FORM No. 1824.

Order on motion referring cause to hear and determine.13

[Title (court order) and recitals, according to motion; see Form 820, p. 1174.]

ORDERED, that this cause and all the issues1 [of law and fact] therein are hereby referred to R. F., Esq., of

to hear and determine.

15

, as referee,

[For special directions, if desired, see Forms 1825 to 1829.] Enter: [signature of judge by initials of name and title.]

FORMS NOS. 1825-1829.- STATEMENTS SUITABLE TO INSERT IN FOREGOING FORM.

FORM No. 1825.

To speed the reference.

The hearing may be brought on by either party on written notice to the other.16

days'

[The referee is to proceed from day to day, unless for good cause shown he shall in his discretion grant an adjournment may add: on payment of the costs of the session by the party applying therefor.]

FORM No. 1826.

Leave to sit in another county.17

That for the convenience of witnesses the trial of this action [or, the hearing before said referee] be had in the city and county of [or, that the said referee is hereby empowered to sit for the purpose of taking testimony in the county of

referee to do so.

Mundorff v. Mundorff, 1 Hun, 41, 3 Supm. Ct. (T. & C.) 171.

15 If the referee resigns, his resignation should be presented to the Special Term, and a motion there made for the appointment of a new referee. Brady . Kennedy, 65 App. Div. 190, 72 N. Y. Supp. 507.

16 As to fixing the time for the hearing before the referee in a way to make it a condition, see Parkhurst v. Berdell, 87 N. Y. 145. For provision against delay or cessation of one of more of the referees to act, see Devlin t. Mayor, etc., of New York, 62 How. Pr. 260.

17 Supported by Pierce v. Voorhees, 3 How. Pr. 111.

or, in any county in this State18 — and may add: on condition that the pay the expenses of the said referee while at

tending in such other county].

FORM No. 1827.

Reservation of leave to amend.

Either party is to be at liberty to amend his pleading as of course at any time at least days before the day noticed for the first hearing before said referee.

FORM No. 1828.

To take accounting.

And if an accounting be necessary, said referee shall proceed to take and state the same, and may compel the production of the necessary books and papers as fully as the court might do, and award final judgment to be entered in his report.1

FORM No. 1829.

Direction for judgment where rule or statute does not provide for it. Upon filing the report of said referee with the clerk of the court, judgment may be entered in conformity therewith as if said cause had been heard before the court.20

FORM No. 1830.

Order referring the cause, without motion.

[Title of action.]

At a Special [or, Trial Term, etc.; see
Form 820, p. 1174].

This cause duly coming on to be tried, and the parties and their attorneys appearing, and it appearing to the satisfaction of the court that the trial will require the examination of a long account,21 and does not involve any difficult question of law: ORDERED, [as in preceding Forms].

18 O'Brien t. Catskill R. R. Co., 32 Hun, 636.

19 The court may grant to referee to determine an action against a trustee for an account, power to compel production of books and papers. Fraser . Phelps, 4 Sandf. 682. It was also held in that case that unless they do so he has not that power, but application must be made to the court. The better opinion now is that a referee to hear and determine the issues has

all the power of the court in this respect; and so I understand the practice to be.

20 Sustained by Belmont t. Washington & Georgetown R. R. Co., 13 Wash. L. Rep. 82; Austin v. Rawdon, 42 N. Y. 155. Unnecessary in actions under the New York Code.

21 This fact must appear beyond a mere possibility. Cassidy v. McFar land, 139 N. Y. 201.

II. REFERENCE BY CONSENT.

FORM No. 1831.

Stipulation to refer cause to hear and determine issues (short Form),22

Stipulated that this cause and the issues of [law and] fact therein be referred to R. F., Esq., of [counselor at law],

as sole referee [or, to a referee to be appointed by the court], to hear and determine.24

[If desired to restrict reference to the person named, add:] If said R. F. refuses to serve [or, a new trial of the action is granted after trial before him] another referee shall not be ap