Charles J. Hardy, for appellant. Thornton, Earle & Kiendls, (David Thornton. of counsel.) for respondent. PRYOR, J. The appeal is from two orders, one granting a motion for a reference to hear and determine, and the other denying a motion to settle issues for trial by jury. In Cassidy v. McFarland, 34 N. E. 893, 895, the court of appeals say that "the examination of a long account imports an actual contest as to the correctness of different charges, or at least of several of them, a prolonged examination of witnesses upon the issue, conflicting proof, and a judicial inquiry and determination as to each one of numerous litigated items." Upon this definition of the term "long account" in section 1013 of the Code, we cannot doubt the power of the court to order a compulsory reference in the case before us. The first count in the complaint is to recover $184,985 for work and materials, involving, necessarily, innumerable items. The answer puts in issue the performance of the work and the furnishing of the materials; and thus the pleadings subject these innumerable items to prolonged litigation, and judicial inquiry and determination. The second cause of action is for extra work and materials, and the statement of claim exhibits 25 distinct charges, several of which are again divisible into different items. That, within the letter and the policy of the statute, the causes of action are referable by the court, is a proposition too plain to require argument in its support. In the answer the defendant counterclaims, and asks an affirmative judgment-First, for $30,000, because of plaintiff's failure to complete the work within the stipulated period; second, for $5,900 as liquidated damages under the contract; and, third, for $2,110.20 on account of deficiency in the agreed work and materials. To the counterclaims a reply is interposed. By section 974 of the Code, "where the defendant interposes a counterclaim, and thereupon demands an affirmative judgment against the plaintiff, the mode of trial of an issue of fact arising thereupon, is the same as if it arose in an action brought by the defendant against the plaintiff for the cause of action stated in the counterclaim and demanding the same judgment." Section 970 prescribes that "where a party is entitled by the constitution or by express provision of law, to a trial by jury of one or more issues of fact in an action not specified in section 968, he may apply upon notice to the court for an order directing all the questions arising upon those issues, to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application the court must cause the issues, to the trial of which by a jury the party is entitled, to be distinctly and plainly stated." We are of the opinion that the defendant's contention is valid. Collating sections 970 and 974 of the Code, the inference is irresistible that the court had not discretion to deny a trial by jury of the issues on defendant's counterclaims. The complaint not demanding judgment for a sum of money only, the action is not within section 968. Asphalt Co. v. Arnott, (Sup.) 14 N. Y. · Supp. 327; Kenney v. Apgar, 93 N. Y. 539. The counterclaims asserting a common-law claim for damages present issues for trial by jury. By section 974 the issues on the counterclaims are to be tried as if they arose in an action by the defendant against the plaintiff; that is, by jury. Where is the escape from the conclusion that section 970 applies? That provision, in peremptory terms, requires the court to grant the order solicited by the defendant. Cases under section 971 are distinguished by the Code, as in their nature they are distinguishable, from cases under section 790. Issues under the latter provision are of right triable by jury, and the law says they must be so tried. Questions arising in cases under the former are purely equitable issues, not of right triable by jury, but which, as the statute provides, the court may "in its discretion" direct to be so tried. Colman v. Dixon, 50 N. Y. 572; Insurance Co. v. Nelson, 8 Hun, 21. In the present case the right of recovery exhibited by the counterclaims constitutes a cause of action at law for damages from breach of contract, and, by the joint effect of sections 974 and 970 of the Code, are, as matter of strict right, triable by jury. The issues arising upon the defenses to the complaint were referable, and the order so adjudging is correct. The issues raised by the reply to the counterclaims are of right triable by jury, and the order adjudging the contrary is erroneous. The embarrassment and expense entailed by this double and different trial of issues in the same action are obvious, but they present an argument to the legislature, not to the court. Order of reference affirmed. Order denying issues for a jury reversed. No costs to either party. All concur. (6 Misc. Rep. 81.) MECHANICS' & TRADERS' BANK v. LIVINGSTON et al. (Common Pleas of New York City and County, General Term. December 4, 1893.) 1. NEGOTIABLE INSTRUMENTS RIGHTS OF TRANSFEREE AGAINST ACCOMMODATION MAKER. Transferee of negotiable note taken before maturity as collateral security for a precedent debt is a holder for value, and he may enforce it against an accommodation maker, if there be no diversion or other fraud in its acquisition. 2. SAME-NOTICE. Notice that the note was accommodation paper, without more, will not affect the holder's right of recovery. 3. SAME-BURDEN OF PROOF. By production of the note, plaintiff makes a prima facie case, and it then devolves on defendant to defeat the apparent right. 4. PLEDGE-SPECIAL SECURITY-DISCHARGE. Collateral security for one debt may not be applied to another, nor be retained after the specific debt is discharged. 5. SAME-GENERAL SECURITY-RIGHTS OF PLEDGEE. But collateral security for a general account may be applied to any debt of the account. 6. APPEAL-RULINGS ON EVIDENCE. To be admissible as of right, evidence must appear competent when offered; and while, in the exercise of discretion, the court may receive it provisionally, a refusal so to do is not reversible error. (Syllabus by the Court.) Appeal from city court, general term. Action on a promissory note by the Mechanics' & Traders' Bank against Frederic Livingston and another. From a judgment (23 N. Y. Supp. 814) affirming a judgment entered on a verdict for plaintiff, defendants appeal. Affirmed. Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. George F. Martens, for appellants. PRYOR, J. To an action on a negotiable note the defense is that it was made for the accommodation of the payees, that it was transferred to the plaintiff as collateral security for a previous loan. and that the loan has been repaid. That the loan has been repaid is not controverted; and, if the fact be that the pledge of the note was as security only for the specific loan, then, beyond question, the defendants were entitled to the verdict, upon the settled principles that a security for one debt cannot be applied to another, (Duncan v. Brennan, 83 N. Y. 487; Bank v. Bell, 125 N. Y. 38, 42, 25 N. E. 1070; Wyckoff v. Anthony, 9 Daly, 417,) and that, when the debt is discharged, the pledgee's interest in the security is extinguished, (Cass v. Higenbotam, 100 N. Y. 248, 3 N. E. 189; Farwell v. Bank, 90 N. Y. 483.) But the terms of the agreement under which the collateral is received may authorize it to be held for the satisfaction of all debts against the pledger, and, if so, it may be applied to the payment of any debt. Moors v. Washburn, 147 Mass. 344, 17 N. E. 884; Eichelberger v. Murdock, 10 Md. 373. This was the contention of the plaintiff, namely, that the note was delivered by the payees as security "for their account in general," and that upon that account they are still indebted to the plaintiff in the sum of $6,000. The issue thus raised was strenuously contested, might well have been determined either way upon the evidence, and was submitted to the jury on a charge to which neither party took exception. A tribunal for the decision of questions of law only, we have no jurisdiction to disturb the verdict, unless, as appellants allege, error appears in the rulings on evidence. Assuming the note to be accommodation paper, the defendants contended on the trial that it was incumbent upon plaintiff to show itself a holder for value, and for value independent of an existing indebtedness; and the court, with extreme indulgence to the appellants, so instructed the jury. The proof exacted of the plaintiff was more than the law required. Upon production of the note plaintiff presented a prima facie case, and it devolved on defendants to impugn the apparent right of recovery. Bank v. Wood, (Sup.) 19 N. Y. Supp. 81; Bank v. Haulenbeek, (Sup.) 1 N. Y. Supp. 629; Bank v. Crow, 60 N. Y. 85. Conceding the note taken as security for a precedent debt, with notice of its accommodation character, still, as it was received before maturity, and no diversion or other fraud was pleaded or proved, plaintiff's right of recovery was indefeasible. Schepp v. Carpenter, 51 N. Y. 602; Bank v. Penfield, 69 N. Y. 502; Freund v. Bank, 76 N. Y. 352, 358; Bank v. Townsend, 87 N. Y. 8; Harger v. Worrall, 69 N. Y. 370; Linderman v. Farquharson, 101 N. Y. 434, 438, 5 N. E. 67; Bank v. Vanderhorst, 32 N. Y. 553. "He who chooses to put himself in the front of a negotiable instrument for the benefit of a friend, must abide the consequences; and has no more right to complain if his friend accommodates himself by pledg ing it for an old debt than if he had used it in any other way.' Black, C. J., in Lord v. Bank, 20 Pa. St. 384. When a man gives his accommodation paper without restriction in its use, authority is imparted to apply it to any purpose; and, since he who takes it as collateral security for a precedent debt holds it for value, mere knowledge of the accommodation cannot impair his right to enforce it. Benjamin v. Rogers, 126 N. Y. 60, 68, 26 N. E. 970. It follows, therefore, that the court rightly rejected proof that the note was accommodation paper, and that it was transferred to plaintiff for a precedent debt only, because the facts, if shown, would not have defeated the recovery. The court excluded evidence of which the competency was not then apparent, but which the appellant promised to "connect." The rule is familiar that, to be admissible, evidence must be competent when offered, unless, in its discretion, the court receive it provisionally. A refusal to exercise the discretion is not the subject of review. No error of prejudice to appellants is disclosed in the record. Judgment affirmed, with costs. All concur. (6 Misc. Rep. 101.) JACKSON V. NEW YORK POST-GRADUATE MEDICAL SCHOOL AND HOSPITAL. (Common Pleas of New York City and County, General Term. December 4, 1893.) 1. MASTER AND SERVANT-ACTION FOR DISCHARGE-MOTIVE. If the master have legal justification for the discharge of his servant, his motive in availing himself of his right is of no effect in impairing that right, and is irrelevant to the issue of justification. The fact that the master may not, as against third persons, question the act of his servant, does not estop him, as against the servant, to allege that act as an abuse of authority. 8. SAME-PROVINCE OF JURY. If upon the evidence it be uncertain whether the misconduct of the servant be justifiable cause for his discharge, it seems the question of justification may be properly submitted to the jury. (Syllabus by the Court.) Appeal from city court, general term. Action by Louis A. Jackson against the New York Post-Graduate Medical School and Hospital to recover damages for alleged wrongful discharge of plaintiff from defendant's service. From a judgment (23 N. Y. Supp. 119) affirming a judgment entered on a verdict for plaintiff, defendant appeals. Reversed. By contract, defendant, a domestic corporation, of which Dr. Roosa was president, employed plaintiff for five years as solicitor of advertisements in defendant's publication the Annual Announcement Book. At the end of the first year defendant discharged plaintiff, and in this action for the discharge defendant pleaded and gave proof of several grounds of justification. Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ. James L. Skillin, (Arthur H. Masten, of counsel,) for appellant. James K. Averill, for respondent. PRYOR, J. In answer to the action the defendant alleged a rightful discharge of the plaintiff, and whether the discharge were justified by his misconduct was the issue upon which, in fact and in law, the verdict was suspended. In terms, the court instructed the jury that, "unless you find that there was just and reasonable cause for the defendant to rescind or cancel this contract by reason of the acts of the plaintiff, the defendant is bound." No exception was taken to this direction; and probably, by the weight of modern authority, where, as here, the imputed misconduct of the servant is not clearly and conclusively incompatible with his obligations to the master, the question of justification is properly for decision by the jury. Ellison v. Jones, (Sup.) 15 N. Y. Supp. 356; Manufacturing Co. v. Latz, 42 Ill. App. 230; Suttie v. Aloe, 39 Mo. App. 38; Bramwell, B., in Horton v. McMurtry, 5 Hurl. & N. 674; Turner v. Robinson, 5 Barn. & Adol. 789; Ridgway v. Market Co., 3 Adol. & E. 171; Read v. Dunsmore, 9 Car. & P. 588; Amor v. Fearon, 9 Adol. & E. 548; Mercer v. Whall, 5 Q. B. 447. And not only the legal quality, but the fact of the plaintiff's misconduct, was referred to the jury, upon evidence which, to say the least, would have well warranted a finding in favor of the defendant. In this aspect of the case it is obvious that any admission of incompetent evidence could hardly fail to be of prejudice to the appellant. By the contract upon which plaintiff sues he was employed absolutely for a period of five years, but within a few days after its execution the defendant endeavored to procure his assent to an engagement terminable on 30 days' notice. This proposed new agreement was received in evidence, contrary to objection and exception by the appellant. In his printed argument the learned counsel for the respondent thus vindicates the ruling: "This paper was introduced in evidence to show, with other testimony, that the defendant almost from the beginning of the contract was seeking some chance to terminate it, and that it was a part of a general scheme to get some pretext for getting rid of the plaintiff without being made liable for damages resulting from a breach of the contract. This was a part of the theory upon which the plaintiff tried this action, and for that purpose the paper was admissible in evidence." But "the motive of the master in discharging the servant is not the issue, nor is it material. The simple question is whether a legal cause existed for such discharge." Wood, Mast. & Serv. 230. In Spotswood v. Barrow, 5 Exch. 110, the cause alleged in the plea for plaintiff's discharge was disobedience of orders. At the trial it was proved that he had misappropriated money, but it did not appear that the defendants knew the fact when they dismissed him. Held, "that, the defendants having a justifiable cause |