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Flanders v. Odell

9 N.Y. Sup. Ct. 664 Court N.Y. Sup. Ct. English

Delivered by Tappen, J.:

Contents

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p. 664
JOHN FLANDERS and others, Respondents, v. MOSES ODELL, Appellant.

Headnote

Beferewse—when should not be ordered.
"Where, in an action upon an attorney’s bill, the defenses interposed are, that the services are not worth the sum named; that the defendant did not make a contract to pay a sum certain; and payment; though it may, in many instances, he proper to refer the case to an attorney, yet, in some cases, it may he improper to compel the defendant to submit his defense to such a tribunal.
Evans v. Kalbfleisch, (16 Abb. [N. S.], 13) followed.
Appeal from an order made at Special Term, referring the cause to a referee to hear and determine.
Close & Robertson, for the appellant.
Ormsby, for the respondents.

The action is upon an attorney’s bill. The trial does not necessarily involve the examination of a long account between the parties, inasmuch as the defendant does not contest the items of expenditure, charged against him by the plaintiff. The defenses' that the services are not worth the sum named or claimed, and that the defendant did not make the contract to pay the plaintiff a sum certain, as set forth in the complaint, and that defendant has fully paid the plaintiff, are questions of fact, the decision of which will chiefly govern the final result. In an action of this nature, while it may be proper to send the case for trial to -an attorney, as

p. 665
referee, in many instances, yet it may also be proper, in some instances, not to compel the defendant to submit his defense to such a tribunal.

In Evans v. Kalbfleisch,[1] where the. plaintiff (an attorney), averred a special contract, and also a quantum meruit, the Superior Court, at G-eneral Term, reversed the order of reference, and the grounds, reasoning and authorities will be found decisive in this case.

And for these reasons, as well as because the examination of a long account is not necessarily involved, the reference should not be ordered.

The order of Special Term, directing reference, reversed, with, ten dollars costs to abide event.

Present — Barnard, P. J., Tappen and Talcott, JJ.

Order reversed, with ten dollars costs to abide event.

* 16 Abb. (N. S.), 13.