Opinion
June 29, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from an order of a Special Term, Supreme Court, Albany County. In this action for rental of equipment and for damage to the equipment while used by defendant, the court at Special Term has denied defendant's motion for a compulsory reference. The issue to be tried is largely on the repairs necessary to restore the equipment to good condition. Of the claim of $6,000 for rental for three months, defendant admits it owes two months or $4,000. The complaint demands $5,555 for repairs; and although plaintiff's bill of particulars exceeds this, we are not advised that the complaint has been amended conformably to the increased demand. A number of machine parts and the cost thereof are itemized by plaintiff in his bill of particulars, but this does not alone constitute a "long account" within section 466 of the Civil Practice Act authorizing compulsory reference. A party is entitled to a jury trial as a constitutional right and only the substantial difficulty in the way of providing such a trial, where the "account" is so long and detailed that a jury would find great trouble in resolving it, is a sufficient ground to authorize a compulsory reference. ( People v. Wood, 121 N.Y. 522, 531; 7 Carmody-Wait, New York Practice, §§ 9, 11, pp. 41, 44; Meisel v. Spielman Motor Sales Co., 264 App. Div. 901; Konheim v. Harris, 148 App. Div. 238; Hemmerich v. City of Geneva, 251 App. Div. 105.) The problem here is essentially the good condition of the equipment when delivered to and returned by defendant; and the long list of items of repairs would be material only after the jury has resolved the general question of condition. When that problem is solved we see no undue difficulty for the jury in resolution of the amount of damage, if any, plaintiff may recover. This is not the "long account" which would permit one party's right to a jury trial to be withheld at the instance of an adverse party. Order unanimously affirmed, with $10 costs.