Clinch v. Henck

49 A.D. 183 | N.Y. App. Div. | 1900

Patterson, J.:

This is an appeal from an order granting a compulsory reference of this action on the ground that the trial of the issues necessarily involved the examination of a long account. The action was brought to recover an amount claimed to be due for various services of the plaintiff as an attorney and counselor at law. A bill of particulars of the claim was served, from an examination of which it appears that there are at least twenty different subjects of employment embraced in the service claimed to have been rendered by the plaintiff to the defendant and many items of disbursements made in connection therewith. The bill of particulars states in very concise language the various claims made, and, if any criticism is to be passed upon it at all, it is that it is too concise. In the answer there is a general denial of the allegations of the complaint. Each one of the items in the plaintiff’s bill of particulars must be examined and proven under the issue framed as if it were a separate cause of action, and we think that no jurors could cany in their minds and keep separated the various details of the numerous and independent items of the plaintiff’s demand; and, as was held in Hedges v. Methodist Church (23 App. Div. 348), that is the test of whether an action to recover for attorney’s services should be referred as stated in Spence v. Simis (137 N. Y. 616).

This case differs from Stein v. N. Y. News Pub. Co. (47 App. Div. 550). In that case we concluded that the hill of párticulars had evidently been expanded or padded to give it the appearance of a long account existing between the parties, and, from the nature of the items, we held that a compulsory reference should not have been ordered. Such is not the condition here.

The order appealed from must be affirmed, with ten dollars, costs and disbursements.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.