Northrop v. Butler

Upon the papers presented we do not think that it satisfactorily appears that the substituted issues involved in this action cannot be properly disposed of by a jury. Where such fact does not appear, we do not think that an action of this character should be tried by a referee, but that the defendant should have the right to a jury trial of the issues of fact. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, without prejudice to such action by the trial judge upon the trial as should be proper, if it shall then develop that such a large number of items are in dispute as to make a trial by jury impracticable. Present — Ingrabam, McLaughlin, Clarke, Houghton and Scott, JJ.; Scott, J., dissented. Order reversed, with ten dollars costs and disbursements, and motion denied,without prejudice to further action as indicated in opinion. Settle order on notice.