Hedges v. Methodist Protestant Church

48 N.Y.S. 154 | N.Y. App. Div. | 1897

Patterson, J.:

The facts set forth as the foundation of the motion for a reference of this cause were not sufficient to justify the order made, and from which this appeal is taken. The action is to recover the value of attorney’s services. It appears that the plaintiff was- employed and rendered service, for the defendant in one action, four mandamus proceedings, two street openings, and that he prepared certain documents and contracts for the defendant. The only ground upon which an action off this character can be referred is that it necessarily involves the examination of a long account. (Code Civ. Proc. § 1013.) Every charge that may be dissected and distributed over a great number of items does not necessarily make a long account within the meanings of the section of the Code controlling that subject. Thus, in the case of Spence v. Simis (137 N. Y. 616), and there .. was a claim made by an attorney for services in four suits, his bill

• of particulars containing 125 items, it was held that a compulsory reference could not be ordered, reversing the court below. In Feeter v. Arkenburgh (147 N. Y. 237), in an action upon an attorney’s bill containing 150' items and three separate subjects of ■employment, it was held that the action was not referable, reversing the court below. The real test is that 'declared in Spence v. Simis (supra), namely, that to justify an order of reference in a case'.of this character, “ facts must be disclosed, either by affidavit or upon •the face of the pleadings, from which the conclusion can be fairly drawn that so many separate and distinct items of account will be • litigated on the trial that a jury cannot keep the evidence iii mind in regard to each of the items and give it the proper weight and application when they retire to deliberate upon their verdict.”' •

There is nothing in the papers in this case which would indicate that an average jury could not fully bear in mind and appreciate the evidence relating to the nature and value of an attorney’s services in one action, four mandamus, proceedings, two street openings and for drawing contracts or documents. Ail mandamus proceedings are in their general formal character alike, as are also street opening proceedings; and an action such as this is so simple in its structure and the evidence required to establish the plaintiff’s claim so easily comprehended, that no reason exists for any other method .of trial than that to which a defendant is ordinarily entitled in common law cases.

The order should be reversed with costs, and the motion for a reference denied, with costs.

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

Order reversed, with ten dollars costs and disbursements and motion denied, with ten dollars costs.