Canavan Bros. v. Automobile Club of America

While the court had power to refer the issues in this action to a referee for trial the parties had á right to a trial by jury unless it clearly appeared that such a trial was impracticable. As the court at Special Term has decided that such a trial was practicable and has, therefore, denied the motion for a reference, we do not think that upon these papers we should reverse that determination. The affirmance of this order, however, is without prejudice to the court at Trial Term when the case should - be brought on for trial, Ordering the issues to be tried before a referee if it should then appear that a trial by a jury was impracticable.

The order appealed from is, therefore, affirmed, with ten dollars costs and disbursements of the appeal to the party in whose favor final judgment is awarded.

Patterson, P.J., Clarke, Scott and Lambert, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements to the party in whose favor final j udgment is awarded. Settle order on notice.!-; -