Avery v. Sand

Full title: William L. Avery and Others, Appellants, v. John H. Sand, Respondent

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Sep 1, 1896

9 App. Div. 622 (N.Y. App. Div. 1896)

Opinion

September Term, 1896.

Order reversed, with ten dollars costs and disbursements. —

HERRICK, J.;

This is an appeal from an order of reference made at the Circuit upon the motion of the court and against the objection of the plaintiff referring all the issues in the action to a referee to hear and determine. The action is one in equity. Whatever opinion I might have, if this was an original question arising under section 1013 of the Code, I feel constrained by the decisions in the cases of Barnes v. West (16 Hun, 68), and Thayer v. McNaughton ( 117 N.Y. 111), to hold that the court had no right upon its motion to make the order appealed from. The order of reference should, therefore, be reversed, with ten dollars costs and disbursements of this appeal. All concurred, except Landon, J., not sitting.