Malone v. Sts. Peter & Paul's Church, Brooklyn

• Decision Date: 21 October 1902
• Parties: MALONE v. STS. PETER AND PAUL'S CHURCH, BROOKLYN.
• Court: New York Court of Appeals Court of Appeals

172 N.Y. 269

64 N.E. 961

MALONE

v.STS. PETER AND PAUL'S CHURCH, BROOKLYN.

Court of Appeals of New York.

Oct. 21, 1902.

Appeal from supreme court, appellate division, Second department.

Action by Sylvester L. Malone, as administrator of Sylvester Malone, deceased, against Sts. Peter and Paul's Church, Brooklyn. From an order of the appellate division (74 N. Y. Supp. 1005) reversing an order of the special term, defendant appeals by permission. Dismissed.

Vann and O'Brien, JJ., dissenting.

James M. Gray, Herbert T. Ketcham, and Joseph E. Owens, for appellant.

Laurence E. Malone, for respondent.

HAIGHT, J.

The question certified to this court by the appellate division is as follows: ‘Has the court, in a suit upon a commonlaw cause of action, brought by an administrator, jurisdiction to order a reference of all the issues in the action to a referee to hear and determine the same, when the administrator opposes the granting of such order and demands a trial by jury?’ The court in this case ordered a reference upon the ground that the trial would involve the examination of a long account. Did the court have jurisdiction to make such an order? In order to answer the question certified, it becomes important to examine the legislation upon the subject.

The first law to which attention has been drawn is entitled ‘An act for the better determination of personal actions depending upon accounts.’ It was passed December 31, 1768, and, so far as is material to the question under consideration, provides as follows: ‘Whereas, instead of the ancient action of account, suits are of late, for the sake of holding to bail, and to avoid the wager of law, frequently brought in assumpsit, whereby the business of unraveling long and intricate accounts most proper for the deliberate examination of auditors, is now cast upon jurors, who, at the bar, are more disadvantageously circumstanced for such services; and this burden upon jurors is greatly increased, since the law made for permitting discounts in support of a plea of payment; so that by the change of the law and practice above mentioned the suits of merchants and others upon long accounts are exposed to erroneous decisions, and jurors perplexed and rendered more liable to attaints; and by the vast time necessarily consumed in such trials other causes are delayed, and the general course of justice is greatly obstructed. Be it therefore enacted by his excellency the governor, the council, and the general assembly, and it is hereby enacted by the authority of the same, that whenever it shall appear probable in any cause depending in the supreme court of judicature of this colony (other than such as shall be brought by or against executors or administrators) that the trial of the same will require the examination of a long account, either on one side or the other, the said court is hereby authorized with or without the consent of parties, to refer such cause by rule to be made at discretion to referees.’ 4 Colonial Laws, p. 1040. This act by its own provision was to continue in force until the 1st day of January, 1771, and no longer. It was, however, revived by the general assembly in February, 1771, and continued in force until the 1st day of February, 1780. 2 Laws N. Y. (Van Schaack's Ed.) 1691-1773, p. 607. From 1780 to 1788 I do not find that any statute was in force upon the subject; but in that year the legislature, by chapter 46, § 2, provided ‘that whenever it shall appear probable in any cause depending in any court of record in this state, as well where an executor or executors, administrator or administrators, is, are or may be party or parties, as otherwise that the trial of the same will require the examination of a long account, either on one side or the other, the said court at any time after issue is joined in such cause, is hereby authorized with or without the consent of the parties to refer such cause by rule to be made at discretion to referees.’ In the year 1801, by chapter 90, § 2, this statute was reenacted, and the same provision was carried into the revision of 1813 by chapter 56, § 2. It thus remained until the revision of 1828, when it was changed to read: ‘Whenever a cause shall be at issue in any court of record, and it shall appear that the trial of the same will require the examination of a long account on either side, such court may, on the application of either party, or without such application, order such a cause to be referred to three impartial and competent persons.’ 2 Rev. St. (2d Ed.) p. 305, § 40. This provision, with some slight, immaterial change, has been carried into our Code of Civil Procedure, and remains the law until the present day. It will be observed that prior to the legislation of 1788 the statute excepted actions by or against executors and administrators, but that, by the laws of that year, actions by or against executors or administrators were expressly included in the provision giving the court the power to order a reference.

The constitution of 1777 provided that ‘trial by jury, in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolate forever.’ Article 41. In the constitution of 1821 the provision was changed so as to read as follows: ‘The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever.’ Article 7, § 2. And in this form it was continued in the constitutions of 1846 and 1894. It is now contended that the act of 1788 authorizing a reference in actions by or against executors or administrators was violative of the constitution of 1777, for the reason that it deprived the parties of the right of a trial by jury, and that by reason thereof all of the subsequent revisions of that act have been unconstitutional, and therefore void. This proposition, if sound, is far-reaching in its consequences. If one party is entitled to a trial by jury, the same privilege must be accorded to the other party in an action, in order that equality before the law may be maintained. Const. U. S. art. 14, § 1. If either party may object to a reference, it follows that no reference can be ordered except upon the stipulation of all the parties in the action.

It is a matter of common knowledge that reference, in actions of the character of that now before us, has been ordered in a great many cases as far back as the memory of any man now living extends, and I think we may assume that such references have been ordered ever since the passage of the act of 1788. No decision has ever been made adjudging the provisions of that act to be in conflict with the provisions of the constitution, but, on the contrary, it has been acted under ever since upon the assumption that it was constitutional. The constitution of 1777 provided that a trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever. What is the meaning of the word ‘used’? Does it have reference to a statute existing upon the subject, or to a custom long in use? The unwritten common law of England was largely made up of customs which had existed for a period ‘whereof the memory of man runneth not to the contrary.’ This law was in force in the colony. There was no statute specifying the cases in which parties were entitled to a trial by jury, and the word ‘used,’ therefore, must of necessity have referred to the customs then existing. What was the custom at that time? It is said that it was to try actions by or against executors or administrators involving the examination of long accounts before a jury. I do not understand such to be the fact.

The settlement of the estates of deceased persons from very early times has devolved upon other than common-law courts. Our surrogate's court dates dack to the act of March 16, 1778. Before the Revolution the powers and duties of the surrogate vested in the colonial governor, who, by virtue of his office, was judge of the prerogative court, or the court of probates, as it was sometimes called. When the government of this province was committed to Gov. Nicolls by the Duke of York, there was framed what was afterwards known as the ‘Duke's Laws.’ Under these laws the province was divided into three ridings, in each of which was a court of sessions, composed of the justices of the peace residing therein, who held a session twice a year. To this court was committed the probate of wills, the appointment of executors and administrators, and the appointment of guardians; but, if the estate exceeded . 100, all proceedings upon the probate of wills and all records in cases of administration had to be transmitted to the secretary of the province, where they were required to be recorded, and where letters testamentary, of administration, and of the final discharge of executors and administrators were granted by the governor under seal of the province. In 1686 instructions were transmitted to Gov. Dongan, directing him to add to the jurisdiction of the governor, as judge of the prerogative court, the ecclesiastical jurisdiction of the Archbishop of Canterbury; and three years later there was also added the ecclesiastical jurisdiction of the bishop of London, so far as it related to testamentary matters or the administration of the estates of intestates. Subsequently, when the colony became more extensively settled, the governor appointed deputies in the different localities, to whom were delegated the power to act for him in such cases, and these deputies subsequently became known by the title of ‘surrogates.’ They took the proof of wills, issued letters of administration, appointed guardians for minors, settled and adjusted accounts of executors and administrators, compelled the payment of debts, and decreed the final distribution of estates. This jurisdiction was derived chiefly from the ‘Duke's Laws' and the added jurisdiction of the ecclesiastical courts.

In 1743 an act was passed under which persons...