New York County NyArchives Court.....Brown, John Vs. Alice Brown 1889
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Source: Reports Of Cases - New York
Written: 1889

First Department, May Term, 1889.

JOHN BROWN and Others, Appellants, v. ALICE BROWN and Others, Respondents.

Action for partition — what issue therein is triable by a jury under section 
1544 of the Code of Civil Procedure — a reference is proper where the main 
question relates to the condition of the accounts between the parties.

The issue of fact in an action for partition, which, under section 1544 of the 
Code of Civil Procedure, is triable by a jury, is an issue which involves the 
right to maintain the action. This section has no application unless some 
defense is interposed which, if successful, will prevent any partition whatever.

It does not apply to a case in which the only matters in controversy relate, 
directly or indirectly, to the accounts with which the respective shares are 
chargeable.

Where the true condition of the accounts between the respective parties is one 
of the main questions presented by the case, although other issues may be 
involved, an order of reference is proper.

Appeal by plaintiffs from an order of reference, made at the New York Special 
Term, in an action for partition, and entered in the office of the clerk of the 
county of New York on the 19th day of September, 1888.

Artemus B. Smith, for the appellants.

James W. McElhinney, for the respondents.

Bartlett, J.:

By its terms, the order from which the plaintiffs have appealed refers this 
action, and all the issues herein, to a referee to hear and determine the same. 
The appellants insist that they are entitled to a trial by jury. This view could 
hardly have been entertained at the time the motion for a reference was argued; 
for one of the plaintiffs, in an affidavit read in opposition to that motion, 
stated that the case had been noticed by his attorneys for trial at Special 
Term, and that he desired and intended to have the cause duly placed upon the 
Special Term calendar and brought to trial in its order. More than this was 
requisite, however, to constitute a waiver of the right to a jury trial (Code 
Civil Pro., § 1009), and we must, therefore, inquire whether the plaintiffs were 
entitled to such a trial under the pleadings.

Section 1544 of the Code of Civil Procedure provides that an issue of fact, 
joined in an action for partition, is triable by a jury. The issues of fact to 
which this provision relates are only such as involve the maintenance of the 
action. It has no application, unless some defense is interposed, which, if 
successful, would prevent any partition at all. Such a defense, for example, 
would be a denial of the plaintiff's title, or a denial that the parties were 
joint tenants or tenants in common. But in a case like the present, where both 
parties pray for a partition, and where there is no dispute as to their 
proportionate interests, but the only matters in controversy relate, directly or 
indirectly, to the amounts with which the respective shares are chargeable, 
neither party is entitled to a trial by jury as a matter of right; and if the 
trial will require the examination of a long account on either side, the action 
may properly be referred.

I am satisfied that the examination of a long account will necessarily be 
involved. An agreement is attached to the complaint, embodying an arrangement 
into which the parties entered for the improvement of the land now sought to be 
partitioned, and the erection of houses thereon. It provided that the plaintiff 
John Brown should have an interest of two undivided fifths in said property, the 
plaintiff James Lamb one undivided fifth, and the defendant Alice Brown two 
undivided fifths, "upon his and her each paying his or her like proportion of 
the costs of said lands and of all improvements thereon." Each of the parties 
also agreed to furnish his or her full share of the moneys required for the 
purposes aforesaid in proportion to his and her interest in said lands, and any 
one who furnished less than his or her fall proportionate share was to be 
chargeable with and to pay interest on such deficiency to those who furnished 
the necessary moneys. The erection of the buildings was to be superintended by 
the plaintiff John Brown, and upon the sale of the land and buildings, or any 
portions thereof, the parties were to share the profits or losses of the 
undertaking in proportion to their respective interests in the land. The 
plaintiffs, in their complaint, expressly demand that an account may be taken of 
all the dealings and transactions of the parties to the said agreement, and an 
account of the amounts contributed, received and paid by the said parties 
thereto, respectively; and the defendant Alice Brown, in her answer, prays that 
the plaintiff John Brown may be ordered to file and render a verified account of 
his proceedings in relation to the matters and things set forth in the 
complaint, and that said account be passed, stated and allowed by this court or 
a referee to be appointed herein. It will be seen, therefore, that the parties 
agree as to the necessity of an accounting, and it is evident that the true 
condition of the accounts between the parties is one of the main questions 
arising in the case, although other issues may be involved. Under these 
circumstances, an order of reference is proper. (Genet v. Delaware, etc., Canal 
Co., l2 Civ. Pro. R., 448.)

But the appellants contend that whatever accounts existed between the parties 
have become stated by virtue of a clause in the agreement between them, which 
declares "that the accounts of the costs of said lands, the costs of the 
improvements thereon, and the expenses connected therewith, and also the 
accounts of money furnished by each of them," for the purposes of the agreement, 
are stated in and appear upon the books of account of the plaintiff's firm. I do 
not think this clause in the agreement was intended to be a conclusive admission 
of the correctness of the accounts as contained in the books of the plaintiff's 
firm, so as to preclude the defendants from alleging and proving them to be 
erroneous. It is rather to be regarded merely as a declaration that such 
accounts are prima facie correct, and it puts upon the defendants the burden of 
showing that they are not so. This seems to be a fair construction of its scope 
and meaning.

The facts presented for the consideration of the court below showed that the 
case could be more suitably and satisfactorily tried before a referee than in 
any other way, and, as there was jurisdiction to make the order of reference, it 
should be affirmed, with costs.

Daniels, J., concurred.

Order affirmed, with costs.

Additional Comments:
Reports of Cases Heard and Determined in the Supreme Court of the State of New 
York. Marcus T. Hun, Reporter. Volume LIX, 1889, HUN 52. Banks & Company, 
Albany, NY. 1901.

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