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Leary v. Albany Brewing Co.

66 A.D. 407 Court N.Y. App. Div. English

Delivered by *408 McLennan, J. :

Contents

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p. 407
John F. Leary and Robert E. Malone, Composing the Firm of Leary & Malone, Appellants, v. The Albany Brewing Company, Respondent.

Headnote

Compulsory reference — there must be a reasonable certainty that the examination of a long account will be involved.
A compulsory reference cannot be ordered merely because the case may possibly involve the examination of a long account, but it must appear with reasonable certainty that it will require such an examination.
Where an action is brought to recover on an account for work done and materials furnished containing forty-three items ranging in amount from thirty-three dollars and seventy-five cents to six cents, eighteen of which are for sums less than a dollar, a compulsory reference will not be ordered on the ground that the trial will involve the examination of a long account, although each item of the account could be litigated under the answer, where it appears that it was not probable that they would be so litigated, and that the substantial defense was that the work was not done with the authority of the defendant.
"Appeal by the plaintiffs, John F. Leary and Robert E. Malone, composing the firm of Leary & Malone, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Herkimer on the 26th day of June, 1901, granting the defendant’s motion and appointing a referee to hear, try and determine the issues of the action.
The action was commenced on the 25th day of March, 1901, to recover for materials alleged to have been furnished to and services rendered for the defendant during the month of December, 1900, of the value of $153.33. A schedule was attached to the complaint and made a part thereof, which was an itemized statement of the plaintiffs’ alleged account, and contained forty-three items, ranging in amounts from $33/75 to 6 cents, eighteen of them being for sums less than $1.
The defendant, by its answer, denies every allegation in the complaint, except that it is a domestic corporation, and specifically alleges that it had no dealings of any kind or nature whatsoever with the plaintiffs.
Raymond D. Fuller, for the appellants.
Florence J. Sullivan, for the respondent.

It is apparent that the principal question to be determined between the parties to this action is whether or not the plaintiffs furnished materials to and rendered services for the defendant. The papers submitted upon this motion make it perfectly clear that the plaintiffs did certain plumbing and work upon a certain building in the city of Little Falls, for which they seek to recover in this action. In form, by its general denial, the defendant denies this, but its substantial defense is contained in the specific allegation that it had no dealings whatsoever with the plaintiffs. In other words, that whatever work, if any, was done by the plaintiffs upon the building in question was done without the authority of the defendant or by its procurement, and was not in any manner ratified by it.. So the real issue to be tried is whether or not the occupant of the building, who ordered the improvements was acting for the defendant in so doing. It is true that each item of the plaintiffs’ account may be litigated under the defendant’s answer; but that is exceedingly improbable. Many of the items are small, involving only a few cents, and are of such a character as to substantially preclude controversy as to their amount' or value. It is not enough to justify-a-compulsory reference that the case may by possibility involve the examination of a long account; enough must be alleged or shown to justify the inference that such will be the course, of the trial. {Thayer v. McJTaughton, 117 N. Y. 111 .) A compulsory reference cannot be ordered unless it appears with reasonable certainty that the hearing of the case will require the examination, of a long account.- {Sy>enee v. Simis, - 137 N. Y.. 616 ; Oassicly v. M'cFar land, 139 id. 201.\ Only nine days’ work is charged for and the-. entire job was completed within a month. The services were rendered and the materials furnished in doing a single piece of work,, and related to one transaction. We think that for that reason,, considering all the circumstances, the plaintiffs’ claim was not a. long account within the meaning of section 1013 of the Code of Civil Procedure.

In Feeter v. Arkenburgh ( 147 N. Y. 237 ) the head note is aa follows, viz.:

“ Compulsory Reference — Long Account. In an action to-recover for services alleged to have been rendered by plaintiff

p. 409
as an attorney, the complaint alleged an indebtedness for drawing, copying and engrossing various instruments, examining accounts of certain executors and attending the accounting of the executors before the surrogate, and in counseling and ad vising the defendant concerning her rights, duties and obligations as an executrix, and for divers journeys and other attendance in and about the business .of defendant at her request, and for money paid, laid out and expended by plaintiff in and about defendant’s business. Attached' to the complaint and made a part thereof was a bill containing about 150 items. The answer denied the allegations of the complaint: and upon motion of plaintiff an order of reference was granted. Held, error; that, the bill of items showed that plaintiff’s services were confined, mainly to looking after the interests of defendant as an executrix of a single estate and one or two personal matters, and related substantially to one transaction, and was not a long account within the meaning of section 1013, Code of Civil Procedu re.”

It follows that the order appealed from should be reversed.

All concurred; Williams and Hiscock, JJ., in result only.

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

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