148 N.E. 637 | NY | 1925
Plaintiff and defendant executed a contract on June 5, 1903, whereby defendant undertook to appropriate and pay such sums as were requisite for the proper maintenance of the libraries under plaintiff's administration, including therein insurance charges and interest upon mortgages. It is stated in the complaint that between October 30, 1903, and October 29, 1923, plaintiff paid to the Brooklyn Trust Company forty-one semiannual installments of interest on a mortgage covering the library building, and on twenty-one separate occasions paid premiums for fire insurance. This action is brought to recover the payments so made, each semiannual installment of interest and each insurance premium being pleaded as a separate cause of action, sixty-two in all. The answer denies that the defendant has any knowledge or information sufficient to form a belief in respect of the making of the payments, and as to all but fifteen of the items pleads the Statute of Limitations.
The question is whether the trial will involve the examination of a long account within the meaning of the statute (Civ. Prac. Act. § 466). The interest payments, forty-one in number, accrued periodically under a single mortgage. The few variations in amount are referable to groups of years. The insurance payments, twenty-one in number, show greater diversity, not improbably for the reason that the policies were issued for periods of years. The suggestion is made in the moving affidavit that the variations in amount "may" result in variations of the grounds of controversy. The defendant in an *468 opposing affidavit disavows any present intention to wage the battle on such lines. "The files and records of plaintiff should show without any searching inquiry or extended examination just how much was disbursed by plaintiff and for what purpose."
A compulsory reference will not be ordered upon the showing of a mere possibility that the several items of an account will become centers of independent controversy (Spence v. Simis,
We hold that the plaintiff has failed to bear the burden of making out a reasonable likelihood that the jury will find it necessary to discriminate one item from another and form a judgment as to each. At most there has been made out, not likelihood, but possibility. A different situation would be here if the evidences of payment were shown to be intricate or uncertain or subject to conflicting inferences or even lacking in uniformity, so that the probative quality might reasonably be supposed to differ in respect of different items. Surprises, indeed, may develop on the trial. Contests, not now foreseen, may conceivably emerge. There may be hand-to-hand conflicts of scattered or isolated groups where we look for an assault in mass. If such a situation shall develop, *470 the trial judge will be competent to deal with it by halting the trial and sending the parties to a reference. Our holding is limited by the probabilities disclosed.
The order of the Appellate Division and that of the Special Term should be reversed with costs in all courts, the motion denied with ten dollars costs, and the question certified answered in the negative.
POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur; HISCOCK, Ch. J., not voting.
Orders reversed, etc.