Snell v. Mills

• Decision Date: 24 November 1908
• Citation: 193 N.Y. 433,86 N.E. 460
• Parties: SNELL v. NIAGARA PAPER MILLS.
• Court: New York Court of Appeals Court of Appeals

193 N.Y. 433

86 N.E. 460

SNELL

v.NIAGARA PAPER MILLS.

Court of Appeals of New York.

Nov. 24, 1908.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Ralph M. Snell against the Niagara Paper Mills. From an order of the Appellate Division (127 App. Div. 948,111 N. Y. Supp. 1145) reversing an order of reference, defendant, by leave, appeals, and the Appellate Division certifies questions to the Court of Appeals. Order affirmed, and questions answered.

John Desmond, for appellant.

Abner T Hopkins, for respondent.

GRAY, J.

The question, which we are to pass upon, is whether, although the cause of action alleged in the complaint is not referable, the action is made so by the answer. At the Special Term, a reference of the issues was ordered over the objection of the plaintiff. At the Appellate Division, the order of reference was reversed, and the defendant's motion therefor was denied. Leave was then given to the defendant to appeal to this court.

The complaint contains two causes of action. The first is based upon the failure of the defendant to pay a balance of salary due to the plaintiff under a contract for his services. For a second cause of action, the plaintiff sets forth: That, under a written contract with the defendant, his services were engaged by the latter as the superintendent of its paper mills, for one year, at a stated salary; that, in the event that he demonstrated his ability to fill such position, his employment was to continue thereunder for a further period of two years, at a stated increase of salary; and that he performed all the requirements of his position, but was discharged, after the expiration of the first year, wrongfully and in violation of the contract. Judgment was demanded in damages. The defendant's answer, admitting the performance by plaintiff of services as superintendent for the first year, denied the making of the contract alleged, pleaded payment in full, and, also, that plaintiff had not performed the requirements of his position. It set forth the making of representations by the plaintiff as to his competency and qualifications, that he was incompetent and was not qualified to do the work of superintending, that much of the product manufactured by the defendant during the time of plaintiff's service, was worthless, and that a large quantity of paper had to be remanufactured. Upon the basis of these allegations, made by way of a defense to the action, and as separately stated and set up by way of counterclaim, judgment was demanded against the plaintiff for damages in a certain sum.

Clearly, the causes of action alleged in the complaint, in no sense, involved the examination of an account, and they were not referable, unless a reference were consented to by both parties. The contention of the defendant, however, is that, because its counterclaim will involve a long examination of documents, of witnesses, and of specimens of its products, in order to establish its claim of damage sustained from the plaintiff's lack of ability as superintendent, the action may be compulsorily referred. Assuming that the examination required to establish the facts set up by way of counterclaim is such an examination as the statute contemplates, when providing for a compulsory reference, nevertheless the referability of the cause of action set up by way of counterclaim would not confer any jurisdiction to refer the plaintiff's cause of action without his consent. The plaintiff's cause of action is for the breach of an alleged contract for his services. The answer puts in issue all the material allegations of the complaint. The issue of contract, or no contract, is made, and the defendant seeks to offset a possible recovery by the plaintiff, by setting up an independent claim for damages occasioned by incompetent services. On the issue made upon the contract, the plaintiff was entitled to a trial by jury at common law, and that right has been preserved to him by the Constitution of the state and is inviolate. Whatever the counterclaim involved in the nature of proof, it would not affect the proof requisite to establish the plaintiff's case. The question presented does not differ from that discussed in the case of Steck v. Colorado F. & I. Co., 142 N. Y. 236, 37 N. E. 1,25 L. R. A. 67, upon the authority of which the Appellate Division has reversed the order of reference. In that case, the action was for, substantially, the same cause as the present...