Hossack v. Heyerdahl

Headnote

I. REFERENCE.—ACCOUNT.

1. What is.—Ex pabte account.

a. Items on one side only constitute an account within the meaning of the provisions of the Code relating to references.

1. It is not necessary that the account should be a statement of dealings having a recognized mutual or reciprocal character.

2. Finding below.—Effect of, on question of LONG ACCOUNT.

a. It is conclusive on the question of fact as to whether the account to be taken is long or not.

The complaint in this action was as follows:

The amended complaint of the plaintiff herein by Meade & Rockwell, his attorneys, respectfully shows to-this court:

First.—That heretofore the defendants, Thorwald Heyerdahl, John GL Sibbald, Greorge B. Clachar, and David L. Schonberg, were doing business as copartners, at the city of New York, under the firm name and style of Heyerdahl, Schonberg & Company.

Second.—That from March 13, 1874, to and including May 19, 1874, at New York city, the plaintiff rendered and performed for and at the request of said defendants, as such copartners, certain work, labor, and services as an accountant, to wit, in and about the examination, auditing, and settlement of accounts and books of account on behalf of said firm, which said work, labor, and services were reasonably worth the gum of nine hundred and eighty dollars and twenty-

five cents, and said defendants did promise and agree to pay the same. That no part of said sum has been paid, except the sum of one hundred and sixty dollars, and that the sum of eight hundred and twenty dollars •and twenty-five cents is now due, owing and unpaid from defendants to plaintiff, and that the payment thereof was duly demanded by said plaintiff, and payment thereof refused; wherefore 'plaintiff demands judgment against the said defendants for the sum of eight hundred and twenty dollars and twenty-five cents, with interest thereon from May 20, 1874, besides the costs of this action.

The defendants, by their answer, admitted the co-partnership, and the payment of the sum of one hundred and sixty dollars, but denied the other allegations of the complaint.

The plaintiff moved for a reference on an affidavit made by one of his attorneys in which he swore “that the trial of the aforesaid issue will require the examination of a long account on the side of the plaintiff, consisting of at least fifty items of charges of said plaintiff for said work, labor, and services at various times. That, in the judgment of your deponent, this is a fit action for reference,” and the pleadings and the bill of particulars which was as follows :.

Messrs. Heyerdahl, Schonberg & Go., Dr. to Johh

I). Hossack, Public Accountant, 70 Wall-street, N.Y.

For services rendered in auditing the books of your firm kept in New York, examining and correcting accounts and books sent out by your London house, and making, so far as practicable, a final settlement and the closing entries in the New York books of the affairs of this concern to April 30, 1874:

The defendants read in opposition an affidavit made by one of them, in which he swore that the trial of the issue would not require the examination of a long account on the side of the plaintiff, consisting of at least fifty items of charges of said plaintiff' for work, labor, and services at various times, and that such trial would not require the examination of such an account or any long account whatever.

The motion was granted, and an order referring the issues for trial, was made.

From this order defendants appealed.

urged ;—I. What is meant by the term “long account,” as used in section 271 of the Code % (a) The history of the legislation upon the subject of references of actions involving the examination of long accounts is. presented in Townsend v. Hendricks ( 40 How. Pr. 143 ). (b) From the language of the decisions under these statutes, it would appear that a cause was referable only when the matter in controversy was the account, itself or arose upon it, or where the account was directly involved in the issue (Thomas v. Reab, 6 Wend. 503 ; Dederick v. Richley, 19 Id. 110; Ronalds v. Mechanics’ National Bank, 37 N. Y. Sup'r Ct. 208). In Brinck v. Republic Fire Ins. Co. (2 N. Y. Supreme Ct. 550), it was said “ That term was simply designed to. include actions involving the examination of accounts arising out of transactions of business or dealings between parties.”

II. Will the examination of such a long account be required on the trial of this action ? The action does not arise upon an account, nor is an account directly involved in the issue, nor are any of the characteristics of referable accounts to be found in the statement of the plaintiff’s services. An inspection of the so-called “long account” of the plaintiff shows, that while it

consists of many items or entries, only the last three entries are fairly matters of account between the parties, viz.: (1) the final debit; (2) the solitary credit, and (3) the balance. It will be seen that the plaintiff has put a fixed valuation of three dollars upon each hour of his employment whatever the kind of service he was then engaged upon, and that his account is substantially for three hundred and twenty-six and three-quarters hours’ work, at the rate of three dollars per hour. It can scarcely be argued seriously that by itemizing the days upon which this work was done, the plaintiff can deprive the defendants of their right to the verdict of a jury as to whether he actually did the work claimed to have been done, and if so, as to its value. Again, it nowhere appears that there was more than one employment, or that there was an employment in separate matters of service which would constitute legally distinct items of charge (Secor v. Sturges, 16 N. Y. and cases cited. Opinion, MS. by Bobir sor, J., recently delivered at special term, Common Pleas, in case of Martin v. Grould).

urged ;—I. The plaintiff is required to prove each and every day’s service charged as in bill of items, the time occupied upon each day, and the value of every day’s services, and these questions of fact are fully put in issue by the answer.

II. The Justice at special term has settled the question as to whether a long account was involved and the appellate court will not review his decision (Bachelor v. Albany City Insurance Co. 37 H. P. R. 399, and cases there cited).