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Fitch v. Volker & Felthousen Manufacturing Co.

23 N.Y.S. 1103 Court N.Y. Gen. Term Decision date 1893-06-23 English

Delivered by LEWIS, P. J.

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p. 1103
FITCH v. VOLKER & FELTHOUSEN MANUF'G CO.
(Supreme Court, General Term, Fifth Department.
June 23, 1893.)

Headnote

Reference—Long Account.
Where plaintiff, in an action for legal services and disbursements, serves a bill of particulars containing 56 items, 49 of which are for services, and it appears from the bill that all the services and disbursements were made id one action, a long account is not involved, within Code Civil Proc. § 1013, so as to authorize a reference of the case.
Appeal from special term, Erie county.
Action by William 0. Fitch against the Volker & Felthousen Manufacturing Company. From an order referring the action to a referee to hear, try, and determine, defendant appeals.
Reversed.
Argued before LEWIS, P. J., and HAIGHT and BRADLEY, JJ.
Edward C. Randall, for appellant.
William C. Fitch, in pro. per.

The cause of action stated in the complaint is for services rendered, and for disbursements made, by plaintiff, as an attorney, at the request of the defendant, to the amount and value of $1,000. Payment of $286.46 on account thereof is admitted, and judgment is demanded for the balance. The defendant’s answer admits that plaintiff performed services and paid money as attorney for the defendant, but denies that they were of the amount and value of $1,000. In response to a demand therefor, the plaintiff served a bill of particulars, which contains 56 items, 49 of which are for services, and the balance for disbursements. It is apparent from a perusal of the bill of particulars that the services and disbursements mentioned therein were all rendered and made in one action. The action was originally commenced in the municipal court of Buffalo; was tried in that court. An appeal was taken to the superior court of Buffalo, was there tried, and thereafter an appeal was taken to the general term of that court. The plaintiff adopted the plan of keeping an itemized book account of his services and disbursements in the .action. The first charge is for a retaining fee, and then follows charges for bringing the action, and for services from time to time rendered in the action; for perfecting an appeal. There are five separate charges for pre

p. 1104
paring amendments to a proposed case, and for services on the settlement thereof. There is but one cause of action arising out of the contract, to wit, the agreement to collect a claim against one Duero. The service rendered by plaintiff was essentially single, though it required different days’ work to complete it. Bathgate v. Haskin, 59 N. Y. 533 . The main question litigated upon the trial will be as to the amount and value of plaintiff’s services. He cannot, by dividing his labor into periods, convert his claim into a long account, within the meaning of section 1013, Code Civil Proc. The cases of Randall v. Sherman, 131 N. Y. 669 , 30 N. E. Rep. 589 , and Spence v. Simis, 137 N. Y. 616 , 33 N. E. Rep. 554 , are decisive •of the question presented by this appeal. The latter case was brought to recover for a lawyer’s services and disbursements in four different actions. The account contained 125 items, and yet the. court held that it was not a case for a compulsory reference; that it was not a long account, within the meaning of the term, ■as it is used in the law, and as it has been construed and defined in the practice of the courts. The order appealed from should be -reversed, with $10 costs and disbursements. All concur.

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