Hoes v. Allen

The action is brought to recover of defendant the sum of $2,028.28,—the interest of plaintiff’s intestate in the pro- ■ ceeds of certain real estate sold under a judgment of partition and sale, received by him as decedent’s attorney. The defendant claims to have performed services and made disbursements for the decedent aggregating $1,616.36, and admits his liability for the balance. It appears that defendant, as attorney of decedent, counterclaims for his services in said partition the following items: 35 per cent, of $2,028.28, •$709.90; attorney’s fees paid to Philo P. Safford, $350,—a total of $1,059.90; while an extra allowance of $500 was already received by him. When such claims are made, it would be an injustice to deprive the adversary of a trial by jury. Defendant’s professional services, which are principally disputed herein, were rendered in one action; and, although the bill of items particularizes them, that fact does not bring the action into that class which becomes referable, as involving a “long account,” within the meaning of the term as it is used in the Code, and as it has been construed by the courts. Feeter v. Arkenburgh, 147 N. Y. 237 , 41 N. E. 518 ; Eandall v. Sherman, 131 N. Y. 669 , 30 N. E. 589 ; Spence v. Simis, 137 N. Y. 616 , 33 N. E. 554 ; Hedges v. Methodist Protestant Church, 23 App. Div. 347 , 48- N. Y. Supp. 154.

Order appealed from is .reversed with costs and disbursements, and motion denied, with $10 costs. All concur.