Opinion
May Term, 1902.
J. Alexander Koones, for the appellant.
Joseph G. Deane, for the respondents.
This action was brought for an accounting upon the part of the defendant, who had been acting as agent and quasi trustee for the plaintiffs, in reference to certain moneys and securities and the investment and reinvestment of the same, and the collection of the interest thereon. The defendant answered, and among other defenses set up the facts that prior to the commencement of this action he had commenced an action against the plaintiffs for the purpose of having fixed the value of the services rendered to the plaintiffs as their agent and alleging many of the facts contained in the plaintiffs' complaint herein. In this condition of the pleadings, a motion was made for a reference which was granted.
We think this was error. A reference could only be ordered to take and state the accounts between these parties after it had been determined by an interlocutory judgment that the plaintiffs were entitled to an accounting. That had to be determined upon the trial of the issues raised by the pleadings. Upon that trial the defendant would have a right to present the fact of a prior action as an answer to the claim for relief in this action. If the plaintiffs establish their right to an accounting, an interlocutory judgment adjudging this fact should be entered, which judgment should direct the accounting to proceed before a referee to be therein named. Until this question of the right to an accounting had been determined, there was no power in the court to refer. A reference of all the issues, therefore, was improper, and the order appealed from must be reversed, with ten dollars costs and disbursements and the motion denied, with ten dollars costs.
INGRAHAM, McLAUGHLIN and HATCH, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.