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Davis v. Walsh

48 N.Y. Super. Ct. 515 16 Jones & S. 515 Court N.Y. Super. Ct. Decision date 1881-12-12 English

Delivered by Speir, J., held:

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p. 515
EDWIN G. DAVIS, Repondent, v. A. STEWART WALSH, Appellant.

Headnote

Order of reference, when not granted, gross charge being made for number of items, only issue being as to value.
Before Sedgwick, Ch. J., Speir and Freedman, JJ.
Decided December 12, 1881.
Appeal from an order of reference.
The complaint does not purport to be upon an account, but simply for professional services rendered to the defendant in the matter of the estate of John Hancock, deceased. It claims, that these services were, together with disbursements expended on that behalf, reasonably worth the sum of $5,000, and admits payment on account thereof of $975. A bill of particulars furnished the defendant consists simply of a copy of the entries in the plaintiff’s register, showing the different steps taken in rendering these services, but no specific charges for what was done, but only a gross charge of $5,000. These entries in the register consist of fifty-one items. The answer admits the employment and rendition of the services, and making the disbursements, but denies the value thereof as stated, and any value whatever, beyond the sum al
p. 516
ready paid therefor, and for which credit is given to the defendant. The plaintiff’s affidavit read on the motion admits that none of the fifty items in his bill of particulars have separate charges made in detail, but that he has charged the sum of $5,000 in gross for the services, and credited the defendant with the sum of $975.
R. L. Scott, for appellant.
E. G. Davis, respondent, in person.

“This is not sufficient under the Code to compel a reference of an action involving a long account. It is not the immediate object of the suit to take any account or the ground of defense. There is no account to be examined, for it is not disputed. The single issue to be tried, are the services of the value o£ $5,000, or of any value beyond the sum admitted to have been paid. The case is controlled by the following cases, among others: Bathgate v. Haskins, 59 N. Y. 533 ; Kain v. Delano, 11 Abb. N. S. 29 ; Felt v. Tiffany, 11 Hun, 62 .”

Opinion by Speir, J.; Sedgwick, Ch. J., and Freedman, J., concurred in result.

Order reversed, with costs.

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