Carr v. Berdell

Headnote

Action by an attorney for professional services — when it involves the examination of a long account — when it may be referred, to an attorney to hear and determine.

Appeal from an order of reference made at the Orange Circuit-during the progress of the trial of the action.

The action was brought to recover for professional services rendered, and disbursements made, by the plaintiff for the defendants. The answer, although admitting the rendition of services by the plaintiff for the defendants, did not admit that the services sued for had been rendered. The answer also put in issue the value of the ser

vices, and set up payment of all tbe services rendered were worth. The trial was commenced at the Orange Circuit in January, 1880, and after some testimony had been taken, the trial justice of his own motion referred the case, on the ground that it was apparent to him that the trial would involve the examination of a long account.

The court, at General Term, said : “ There may have been occasions calling for the remarks in some of the cases cited by the appellant, deprecating references to attorneys of actions by attorneys for professional services. But no occasion for such remarks exists in this case, it being conceded by both parties, that the referee selected is unexceptionable. Nor can we assent to a sweeping condemnation, of attorneys as referees in any class of cases. If, in a. particular case the power of selecting a referee should be abused, the court has the power of removing him, and it must be presumed, would unhesitatingly exercise the power. It seems to us to be quite evident that the trial of this action will involve the examination of a long account, namely, an account for the services and disbursements of the plaintiff as an attorney and counselor duiing a period of more than two years, on which it is claimed numerous payments have been made. Nor will the trial require the decision of any difficult question of law. It is said that the plaintiff may recover as upon an account stated. But the complaint contains no averment warranting such a recovery.

“ The stipulation to admit the rendering and value of the plaintiff’s services, being conditional upon a favorable decision of this appeal, cannot be allowed.”