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Burt v. Nafis

26 N.Y.S. 184 Court N.Y. Gen. Term Decision date 1893-12-01 English

Delivered by BARNARD, P. J.

Contents

Majority

p. 184
(73 Hun, 574.)
BURT et al. v. NAFIS.
(Supreme Court, General Term, Second Department.
December 1, 1893.)

Headnote

References—Long Account.
In an action to recover money alleged to have been received by defendant as plaintiffs’ attorney, defendant set up a counterclaim for services rendered, and filed a bill of particulars containing 40 items. The answer also alleged that the sum retained by defendant was a price
p. 185
agreed on for the services, and was the reasonable value thereof, and that it was retained by defendant with the assent of the plaintiffs. Held, that a compulsory reference would not be granted.
Appeal from special term, Kings county.
Action by Edward D. Burt and William H. Perry against William H. Nafis to recover the sum of $645, retained by defendant out of the purchase money of land sold by plaintiffs. Defendant set up a -counterclaim for work, labor, services, and disbursements as an attorney in perfecting the title to the land sold. To this counterclaim appellants reply, denying that $645 was a reasonable charge for defendant’s services and expenditures. . A bill of particulars was furnished by defendant on the demand of plaintiffs, containing a daily statement of the items, matters, and things comprising the counterclaim, embracing over 40 items for services, charges, and disbursements. A compulsory reference was granted, on the ground that the long account was involved, and plaintiffs appeal.
Reversed.
Argued before BARNARD, P. J., and PRATT, J.
Geo. G. Dutcher, for appellants.
Jesse K. Furlong, for respondent.

The plaintiffs are the executors of Charles Whiting, deceased. In 1889, acting under a power of sale given by the will, they sold certain premises of the deceased to Kronacher & Etziel for the sum of $10,000. The defendant is an attorney at law, and was employed to pass the title. The deed was delivered, and the money consideration paid to the defendant. He paid to the plaintiffs $9,355, and retained $645. The action is brought to •obtain a judgment for this sum. The defendant, in his answer, avers that there was a serious defect in the title of record, that very valuable services were rendered in removing the defect, and considerable sums of money were expended by defendant in securing the proper releases, to remove the objection made to the title. The answer further alleges that the sum of $645 was the price agreed upon between the plaintiffs and defendant as the fair and reasonable value of the defendant’s services and expenditures, and that that sum was deducted from the amount received by the defendant with the assent of the plaintiffs. The case is not referable- compulsorily. 'The only issue is one of payment. If the trial involves the necessity •of proof of the items of services rendered under the releases to remove defects of title, the ease is not referable by compulsion. The case presented cannot be distinguished from Randall v. Sherman, 131 N. Y. 669 , 30 N. E. 589 ; and the case of Spence v. Simis, 137 N. Y. 616 , 33 N. E. 554 . The order should be reversed, with costs and disbursements to abide event of action.

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