Flanders v. Odell — 16 Abb. Pr. 247

Majority

p. 247

FLANDERS against ODELL.

Supreme Court, Second Department, Second District ; General Term,

December, 1874.

Headnote

Reference.—Account.—-Attorney and Client.— Contract.

In an action on an account for services and disbursements,—e. g., an attorney’s bill,—where the complaint alleges an agreement to pay a sum certain, if defendant does not contest the items of expenditure, but denies the special agreement and alleged value of the services,— a compulsory reference can not be ordered.

The case of Evans «. Kalbfleiseh, 16 Abb. Pr. N. 8. 14, followed.

It seems, that a client sued on an attorney’s bill, may object to the trial being referred to an attorney.^[1]

John Flanders and R. McK. Ormsby, brought this •action in this court against Moses Odell, to recover on an account for - services rendered by them as attorneys and counsel, said account exhibiting seventeen items of charge on the debit side and one item on the

p. 248

credit side thereof, and showing a balance of eleven hundred and twenty-six dollars and thirty-five cents due.

The defendant put in a general denial, an allegation of payment (two hundred and sixty-five dollars), an allegation of the worthlessness of the services, also charging negligence, and a counter- claim for damages in the sum of five hundred and seventy-five dollars for wrongful counsel and negligence. The answer also stated that the employment of the plaintiff, Ormsby, was by the plaintiff, Flanders, on his own responsibility and not at the instance or request of defendant.

In May, 1874, an order of reference was granted at special term, in Kings county, on appeal to the general term, from which order was taken.

Close & Robertson, for the defendant, appellant.

John Flanders, for the plaintiff, respondent.

By the Court.^[1] —

—The action is upon an attorney’s bill; the trial does not necessarily involve the examination of a long account between the parties, inasmuch as the defendant does not contest the items - of expenditure charged against him by the plaintiff.

The defenses, that the services are not worth the sum named ór claimed, and that the defendant did not make the contract to pay the plaintiff a sum certain, as set forth in the complaint, and that the defendant has fully paid the plaintiff, are questions of fact, the decision of which will chiefly govern the final result.

In an action of this nature, while it may be proper to send the case for trial to an attorney as referee, in many instances, yet it may also be proper, in some instances, not to compel the defendant to submit his defense to such a tribunal.

* Present, Babnabd, P. J., Tappeit and Donohue, ,TJ,

p. 249

And, for these reasons, as well as because the examination of along account is not necessarily involved, the reference should not be ordered.

In Evans v. Kalbfleisch (16 Abb. Pr. N. S., 14),. where the plaintiff (an attorney) averred a special contract, and also a quantum meruit, the superior court, at general term, reversed the order of reference, and the grounds, reasoning, and authorities cited, will be found decisive in this case.

Order of special term, directing reference, reversed, with ten dollars costs, to abide the event.