Opinion
November, 1899.
Alexander H. Cowie, for motion.
Frank C. Sargent, opposed.
I see no good reason why this motion should not or cannot be granted.
The action is brought under chapters 711, Laws of 1892, and 415, Laws of 1897, to recover for 2,364 hours of labor claimed to have been performed by plaintiff for defendant in excess of work days of ten hours each within twelve consecutive hours. The extra services are claimed to have been performed by plaintiff as freight brakeman and conductor upon defendant's road during the period extending from January 15, 1892, to April 2, 1899. Their performance is denied by defendant's answer.
The sole and direct object of the action is to recover for these alleged services. It is true that in order to do this plaintiff will be compelled to establish in addition to their performance certain other things, as that he was not working under a mileage system permitted by the statute, and that his work of extra hours was not due to unavoidable accident, etc. But these facts will be proved, if at all, to enable him to recover upon his alleged claim and cause of action, which is 2,364 hours' work. The action involves that account as its direct and substantial issue. In this respect it differs from C. C. Electric Co. v. Walker Co., 35 A.D. 426, cited by plaintiff in opposition to this motion. In that case it was specifically held in denying a similar motion that no account was the direct object of the action; that if any was involved it was collaterally and incidentally.
The action at bar seems to present in respect to this motion the familiar features of a referable action upon an account for services and of which an illustration is found in Nicoll v. Haas, 5 A.D. 206.
The trial will not involve the decision of any difficult questions of law. It would appear that such questions would be simple enough. The main controversy will apparently be over questions of fact. There is no doubt as to the advisability of a reference. While there may not be as many items as there are hours of extra service claimed, it cannot be otherwise than that there will be a great number of items extending over a long period of time. It would be practically impossible for a jury to distinguish and intelligently pass upon them.
The motion is granted, with ten dollars costs of motion to abide event.
Motion granted, with ten dollars costs to abide event.