Opinion
Argued January 18, 1927 —
Decided February 17, 1928.
By section 155 of the Practice act, matters of account in controversy may be referred; and by section 156 such references may be made by a Supreme Court justice in actions pending in the Supreme Court; and under the provisions of Pamph. L. 1906, p. 209, references in matters of account in the Supreme Court may be referred by a Circuit Court judge, when the cause has been referred to him for trial by a justice of the Supreme Court
On motion to vacate rule.
Before Justices KALISCH, KATZENBACH and LLOYD.
For the plaintiff, John Winans.
For the defendant, Stewart Hartshorne.
An action pending in the Supreme Court was duly referred by a justice of the Supreme Court to a judge of the Circuit Court for trial, and when the case came on for trial the learned judge, conceiving that matters of account were involved, referred the same to a member of the bar as referee. To this order counsel for the plaintiff filed no reservation of a right to trial by jury at the time the reference was made, but did dissent from the order itself.
The present motion is to vacate this order of reference on the ground that the judge of the Circuit Court was without legal authority to make it.
By section 155 of the Practice act of 1903 ( Pamph. L., p. 579), reference of actions in which matters of account in controversy may be referred, and section 156 of the same act, provides that such action may be referred by the Supreme Court justice "when matters of account are in controversy pending in the Supreme Court and coming on for trial at the Circuit." Chapter 118 of the laws of 1906 ( Pamph. L., p. 209) enacts that "issues joined in the Supreme Court may be tried by a justice of said court or by a judge of the Circuit Court to whom the same may be referred by the justice of the Supreme Court holding the Circuit; and in relation to the trial of such issues the said judge shall have the same powers as a justice of the Supreme Court."
Under this legislation we think the judge of the Circuit Court was clothed with legal authority to make reference in a proper case. Whether the given case was a proper one in which to make such order can only be reviewed on appeal from final judgment.
The motion is therefore denied.