Barnett v. Scribner — 29 N.Y.S. 262

Majority

p. 262

(78 Hun, 270.)

BARNETT v. SCRIBNER et al.

(Supreme Court, General Term, Second Department.

May 14, 1894.)

Headnote

Reference—Examination of Accounts.

In an action for procuring subscriptions to a publication under a contract which provided that plaintiff should be paid only where the subscriber accepted six volumes of the publication, an examination of accounts is involved, so as to authorize a reference. Brown, P. J., dissenting.

Appeal from circuit court, Kings county.

Action by Samuel M. Barnett against Charles Scribner & Sons. An order of reference was granted, and plaintiff appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

George H. Fletcher, for appellant.

Crane & Lockwood, for respondents.

This is an appeal from an order of reference made at circuit during the trial, and after the examination of the plaintiff as its witness. It is plain from an examination of the pleadings that, to prove both the complaint and the answer, it will be necessary to examine accounts, if all the matters between the parties are to be examined. I think it plain there is but very little merit in. the claim made by the plaintiff. Strictly speaking, it is a. claim for damages for failure of the defendant to give the

p. 263

plaintiff a list of the names of subscribers furnished by plaintiff to defendant, who refused to take the volumes in question. Any damages over six cents, for such a claim, must necessarily be purely speculative. The plaintiff says, by not having the list, he lost the opportunity to go to the delinquent subscribers, and iget them to change their minds and accept the books; but what certainty or proof is vouchsafed that he could effect such change, or what proof can be given upon a trial that one cent of loss can be sustained by failure to secure the lists? The motive or inability of such subscribers, which caused them to refuse to receive the books, are matters entirely beyond the knowledge of the plaintiff, or his power to remedy. The suit is therefore purely uncertain and speculative.

The parties, however, seem to regard this suit as one for a balance due the plaintiff for services under a contract, and the claim for damages for not furnishing a list is mere padding. In this view of the case, a reference was proper. Chambers v. Appleton, 11 Wkly. Dig. 524 , 84 N. Y. 649 . The plaintiff desires to recover the contract price of all the subscriptions he turned in to the defendant, but the contract was that he was to be paid only for such as accepted six volumes of a set of the work. These are all matters involving the examination of accounts. If, upon the trial, the plaintiff had been taken at his word,—that this was a suit alone for breach of the contract to furnish lists,—the complaint ought to have been dismissed for failure to show wherein he was damaged for breach of contract. Order affirmed, with costs and disbursements.

DYKMAN, J., concurs.

BROWN, P. ,T. Upon the pleadings the case is not referable, and the evidence does not make it so. I dissent.