Randall v. Sherman — 43 N.Y. St. Rep. 923

Majority

p. 923

Samuel H. Randall, Resp’t, v. Jacob H. Sherman et al., App’lts.^[1]

(Court of Appeals,

Filed March 25, 1892.)

Headnote

Reference—Attorneys.

In an action for services rendered as attorney and counsel between certain dates in defending an action, the answer denied the services to be of the value alleged. Held, not a proper case for a compulsory reference.

Appeal from order of the New York superior court, general term, affirming order of reference.

John Brooks Leavitt, for app’lts; Samuel 11. Randall, resp’t in person.

We think that the court did not have the power to •order a compulsory reference of the trial of the issue in this •action. Such a reference can only be ordered when the -trial will require the examination of a long account and will not involve the decision of difficult questions of law. Code Civ. Pro., S 1013.

The complaint in this action alleged an indebtedness of the defendants to the plaintiff in a certain sum, upon an account for services rendered to them as attorney and counsel, between certain dates, in defending a certain action and that the services were of the reasonable value stated. The answer put in issue the indebtedness and alleged the reasonable value of the plaintiff’s services to be less than averred. When the plaintiff made his op-' plication for the order of reference, upon the pleadings, those conditions did not appear, nor did they exist, which the Code prescribes as essential to the granting of the order.

p. 924

No account was involved in the issue as the subject of investigation; and the only sense in which it can be pretended that an account could come under consideration at all would be that, in. deference to some request of the defendants, the plaintiff had, before bringing his action, rendered an account, or bill, itemizing, his services. The question presented in such ah action is that of quantum meruit. The services were rendered as the defendants’ attorney and counsel in and about the one action and although they are capable of more or less itemization, that fact does not bring the action into that class which becomes referable as requiring the examination of a long account.

The plaintiff by making out his bill so as to specify the numerous acts and services required in the various stages of the litigation does not make that the “ long account ” which the statute-speaks of. The bill itself does not include anything but services rendered upon the one retainer. His cause of action was single, as his contract was entire. The service he was retained to render was essentially single; although it required distinct steps and proceedings on his part, before the purpose of his employment was fully accomplished. Bathgate v. Haskin, 59 N. Y., 533 . The demand in his complaint was for a sum which represented an aggregate charge for several, and more or less' different, acts and services. These are, of course, the subjects of valuation; but. their proof, in any mode adopted upon the trial, would not convert the subject of plaintiff’s action into one involving the “ long-account” of the statute

The orders of the general and special terms should be reversed and the motion for a reference denied, with costs.

All concur, except Finch, J., absent.