#### Peter Blake, Resp’t, *v.*John J. Harrigan *et al.,*App’lts.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

1. Reference—Theory upon which it is ordered.

A compulsory reference is ordered where the legal questions involved are simple, a long account is to be examined, and when the facts touching the obligations of the parties are found and the items of the account are established the proper judgment will be obvious.

2. Same—Not proper where the legal questions are not simple.

Where, in an action to foreclose a mechanic’s lien, it appeared that the main question was whether the builder had in fact performed his contract and where the alleged accounts were in great part claims made by either side for damages, *Held,*that a reference was improper and that the matter should be tried by a jury.

Appeal from an order of the special term referring the issues in an action to foreclose two mechanics’ liens to a referee to hear and determine.

*E. J. Meegan,*for app’lts; *Mead & Hatt,*for resp't.

Landon, J.

The theory of a compulsory reference is, that the legal questions involved are simple, that a long account needs to be examined, and that when the facts touching the obligations of the parties are found, and the items of the account established, the proper judgment will be obvious. Section 1013, Code Civil Procedure, accords with this theory. It-provides for a compulsory reference “ where the trial will require the examination of a long account, on either side, and will not require the decision of difficult questions of law.” The same rule applies to equitable as to legal actions. *Thayer*v. *McNaughton,*117 N. Y., 111; 26 N. Y. State Rep., 843. It is not enough that the case may, by possibility, involve the examination of a long account. Id. Items of *27damage which involve no accounting do not justify such a reference. *Morrison*v. *Van Benthuysen,*108 N. Y., 675; 3 N. Y. State Rep., 687. The accounts to be examined must be the immediate object of the action, or of the defense, and not the incidental or collateral object. *Camp*v. *Ingersoll,*86 N. Y., 483; *Kain*v. Delano, 11 Abb., N. S., 29.

Here the plaintiff seeks to foreclose two mechanics’ liens. He had a contract with the defendants wherein he agreed to erect within a fixed time for the price of $10,175, seven buildings according to plans and specifications. After the time had expired, and before the buildings were completed, the defendants discharged the plaintiff and forbade him to proceed any further, and they finished the buildings themselves.

The plaintiff alleges that he was without fault, and the defendants allege a justification of his discharge and counterclaim for damages for bad work and materials, for delay, for a substantial departure from the plans and specifications, and for their expense in completing the buildings. One of the liens filed is for $1,175, $1,000 of which the plaintiff alleges is a payment due him upon the certificate of the architect, given pursuant to the contract. This is put in issue by the answer. The other lien filed is for the entire contract price, as upon a *quantum*meruit, less certain credits, and for $766.14 extra work. It is plain that the main question involved in this case is, whether the plaintiff kept within the terms of his contract, or whether he was guilty of a breach of it. If the plaintiff kept within his contract, the counterclaims, which depend upon his breach of it, must fail. If the plaintiff substantially departed from the contract without the consent of the defendants it is difficult to see how he can recover at all, unless it be for the $1,000 included in the architect’s certificate. The greater part of the claims which the parties put in issue are not accounts in the ordinary acceptation of the term, but damages which each party claims to recover against the other because of an alleged breach of the agreement. The accounting, if any, will be incidental to the main issues. The defendants are entitled to have the main issues tried by the court. The court, having determined them, can then send the accounting to a referee, if any should appear to be necessary. Code Civ. Pro., § 1013.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Learned, P. J., and Mayham, J., concur.