N. Y. SUPERIOR COURT.

#### Martin L. Townsend, plaintiff and respondent, agt. Mortimer Hendricks, Harmon Hendricks and Lazarus Lissberger, defendants and appellants.

Where of the action, as stated in the complaint, is for the recovery back of moneg not voluntarily paid with a knowledge of the facts, it is referable, although false and fraudulent representations are charged in the complaint and denied in the answer, a long account being involved in the issues. (Spencer, *J.*dissenting. *Molding that the court has no power to make a compulsory reference in cases sounding in*tort, *like the present.)*

*General Term,*May, 1870.

*Before*Barbour, *Ch. J., and*Freedman *and*Spencer, *JJ.*

Appeal by defendants from an order made at special term, on the 11th of April, 1870, referring the action and all the issues therein, to a referee to hear and determine the same.

John L. Hill, *for plaintiff.*

C. M. Da Costa, *for defendants.*

Freedman, J.

The complaint sets forth two contracts between the parties for the purchase of 400,000 pounds of ingot copper, and several supplemental agreements whereby the defendants undertook to advance the purchase money to store the copper and carry the same, as it is usually called, at the option and for account of plaintiff, and subject to his order. Charging him therefor the usual and customary expenses for storage, insurance, and interest on the money advanced; that from time to time defendants reported to plaintiff progress in the performance of the various agreements on their part, and that upon the faith of each successive report plaintiff paid to defendants certain *476moneys amounting in the aggregate to $25,000 towards the performance of said agreements on his part; that all the representations made by the defendants from time to time as to performance on their part were untrue, and made with intent to deceive and defraud plaintiff; that defendants did not perform the contracts or any of the agreements on their part. That before the commencement of the action, upon discovering the false and fraudulent acts and representations of the defendants, the plaintiff duly demanded of them the repayment of the several sums of money paid by him on account, but that they refused; plaintiff prays judgment for the return of the $25,000 paid by him;

The defendants by their answer deny the fraud and misrepresentations charged, and set up full performance on their part of an agreement by plaintiff to maintain in their hands a margin of four cents per. pound; non-performance on the part of plaintiff; a sale of the copper for plaintiff’s account, upon due notice to him; and as á counter-claim a balance of $1,031 07, due from plaintiff to defendants on account of moneys advanced, expenses incurred, commissions, insurance and interest, for which they demand an affirmative judgment against the plaintiff.

The plaintiff, by his reply, puts in issue all the material-facts relied upon as constituting the said counter-claim.

Upon the hearing of the motion for reference founded upon affidavits, the pleadings, and the defendant’s bill of particulars, the learned judge at special term found as matter of fact that the trial of the issues necessarily raised by the pleadings, involved a long account within the meaning, of § 271 of the Code, and thereupon granted plaintiff’s motion for a reference of all the issues, to hear and determine the same. According» to the decision of Batchelor agt. *The Albany City Ins. Co.,*(37 *How.,*399,) this determination of the special term will be held final and conclusive; especially as it has been the law of this court almost since the adoption; of the Code, that a reference may be ordered *477in an action sounding in' tort, where the trial of the issue of fact will require the examination of a long account, *(Sheldon*agt. *Wood,*3 *Sandf.,*739.) The case last cited was decided with the concurrence of the entire court.

The appellants have argued, however, that even if section 271 of the Code can be construed to authorize the compulsory reference of all the issues in an action sounding in tort, in which any one of the issues does not involve the examination of along account, such construction would render the said sectionunconstitutional and void, as contravening art. 1, § 2, of the Constitution of 1846j which provides:

“The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever. But a jury trial may be waived by the parties in all civil cases, in the manner to be prescribed by law.”

This point was not raised in the cases above named. It is now advanced, as I believe, for the first time, but in my judgment does not necessarily enter into the decision of this case.

The complaint is not a complaint for a mere naked tort, in an action in which damages for the wrong are sought to be recovered; but it contains a statement of facts which show that plaintiff’s payments were not voluntary ones with knowledge of the facts, and that for this reason, he is entitled to recover back the amount paid. This state of facts, according to the-decision of the court of appeals, in *Byxbie*agt.. Wood, (24 *N. Y.,*610,) does not necessarily require an action to be brought for the tort, even if it allows one so to be brought; such facts always raise in law the implied promise, which was the contract—cause of action in *indebitatus*assumpsit, for money had and received.

Under the Code, this implied promise is treated as a fiction and the facts (out of which the prior law raised the promise) are to be stated without any designation of a form of action and the law gives such judgment as, being asked for, is appropriate to the facts.

*478If the plaintiff in the case at bar, shall show, as he may* do under his complaint, that the defendants never entered upon a performance and that in consequence he demanded back his money, which was refused, the allegations of fraud pleaded as matter of aggravation do not affect the main'issue.

It will also be seen that the issue, the trial of which requires the examination of a long account, has been raised and forced into the case by the appellants.

The case, therefore, is not one which calls upon the court to adjudge an act of the legislature void in which the the bench and bar have acquiesced for over twenty years.

The order should be affirmed with .$10 costs.

Barbour, Ch. J., concurred.

Spencer, *J., dissenting.*

My associates at this general term have decided to sustain this order of reference appealed from.

I agree with them as to the *convenience and policy*of compelling parties to take a reference in cases where the examination of "a long account is necessary. I believe it to be greatly tor the interest of the courts and of suitors that a reference should be ordered in all such cases.

I differ with my associates in regard to the power of the court to make a compulsory reference in cases sounding in tort, or (according to old divisions) in an action “ex delicto,” and upon due consideration of this case, I conclude that it is an action of that class.

In a like case before meat special term, I held that I had no power to order a reference without consent of parties. That a party objecting had the constitutional right to a trial by jury, and that it must be preserved to him, and upon further consideration of the same constitutional point in this case, I hold that a compulsory order of reference should not have been made, and the order of the special term should be reversed.