COURT OF APPEALS.

#### William R. Mastin agt. The Windsor Hotel Company.

*Reference—Action by an attorney for services—Appeal—distinction between discretiona/ry orders and orders involving matters of substantial right*— *in what cases such orders may be reviewed by appeal. ■*

An action by an attorney for services, where the defense is that the . charges are exorbitant and oppressive, is referable under the statute; but whether it should be referred or not is *discretiona/ry*with the court or judge before whom the cause is pending.

The general term has the power to review such order of the special term, notwithstanding it is discretionary.

It is only necessary that the order, to be appealable from the special to the general term, must affect a substantial interest—a matter of substance, and not of mere form, and it may be such an order and yet be *discretionary.*

But such an order is not appealable to the court of appeals.

A reference is not an absolute right in any case. Whether the court will exercise the power conferred of referring any action which the statute authorizes to be referred, depends upon all the circumstances of the case, and the exercise of the power in a given case, is reviewable by the general term, but *not*by this court.

*June*Term, 1877.

This action was brought by Mr. Martin against The Windsor Hotel Company for professional services as legal adviser, &o., and at special term an order was made granting a reference of the issues in the action. The reference was to an- attorney of the court. The defendants appealed, and although there was no question that the issue involved the examination of a long account, and that the court, therefore, had power to order a reference, the general term declared

*423that they had power to review the order, notwithstanding it was discretionary, and held that, under the circumstances, the present issues, involving a lawyer’s claim against his client, should not be referred to a lawyer, and reversed the order, leaving the action to be tried by a jury in the ordinary way *(See*10 *Hun,*304).

The plaintiff appeals to this court, and the defendant asks that the appeal be dismissed.

*Luke A. Lockwood,*for appellant.

*James Emott,*for respondent.

Church, *Ch.*J.

It is conceded that the action is referable under the statute, and whether it should be referred or not was discretionary with the court below, and the order is not, therefore, appealable to this court. The point insisted upon is that the order was not appealable to the general term. Section 349 of the Code provides (among other things) that an order is appealable from the special to the general term, “when it involves the merits of the action or some part thereof, *or affects a substantial right.”*The question is, whether this order affects a substantial right. It is claimed that a substantial right, within the meaning of the Code, is an absolute legal right, and that a matter which is discretionary is not a substantial right, and hence not appealable to the general term. There are judicial expressions made during the earlier period of the Code which favor this view, but it is an erroneous construction, and it has been settled that the general term may-review orders that affect substantia:! rights, although discretionary. Denio, J., in 29 *New York,*418, in defining a substantial right, distinguished it from a merely formal matter or right. It is only necessary that the order, to be appealable, must affect a substantial interest, a matter of substance and not of mere form, and it may be such an order, and yet be discretionary. The Code, in section 11, *424subdivision 4, recognizes that an order affecting a substantial right may be discretionary, by providing that an appeal will lie to the court of appeals, in certain cases, from an order affecting a substantial right “ *not involving any question of*discretionIt has been urged that as the court of appeals will not review a discretionary order under the third subdivision of the eleventh section providing for an appeal to that coui’t from a final order in a special proceeding “ affecting a substantial right,” without the qualifying words employed in subdivision 4 above quoted, the general term has,-there-' fore, no power to review a discretionary order under section 349, where the same words are used. The answer to this is, that the court of appeals refrain from reviewing such orders when discretionary, not from any prohibition implied by the words *substantial right*but from the constitution and functions of the "court as an appellate tribunal restricted to a review of questions of law only, while the general and special terms of the supreme court are but different parts of the same court, of equal original jurisdiction, and the former can review and correct orders made by the latter, whether discretionary or not, provided they affect matters of substance *(Howell*agt. Mills, 53 *N. Y,*322). The question involved below was a right to a trial by jury or referee, and whether the parties»should have the controversy determined by one tribunal or the other was a matter of substance, and hence appealable, although the court had power, in the exercise of its discretion, to order either mode of trial. The constitution of the tribunal, the mode of trial, the effect of the verdict and grounds of review, are entirely unlike, arid affect substantial interests of the parties to the action. The constitution.has protected the rights of trial by jury in a certain class of cases, and as to others the statute permits a reference. A reference is not an absolute right in any case. Whether the court will exercise the power conferred of referring any action which the statute authorizes to be referred, depends upon all the circumstances of the case, and the exercise of *425the power in a given case is clearly reviewable by the general term, but not by this court.

The appeal to this court must therefore be dismissed.

All concur.

Note. —The jurisdiction of the court of appeals is defined by the new revision of the statutes *(Code of Civil*Procedure, *sec.*190). By a comparison of this section with section 11 of the former Code, it will be observed that the language of subdivisions 2 and 3 of the present Code preserves the distinction which marks section 11 of the former Code, by which the clause excluding orders involving any discretion is preserved in respect to orders made in the course of the action, but is not contained in subdivision 3, which relates to special proceedings and summary applications after -judgment. But the principle which the court of appeals lays down, will be equally applicable under the new statute as under the old, and excludes from review, by appeal to that court, orders involving questions of discretion when made in special proceedings or after judgment, equally as when made in the course of an action before judgment. — [Ed.