| N.Y. App. Div. | Jul 24, 1906
The plaintiffs complain bn a quantum meruit for services rendered the defendant as professional auditors and accountants in examining the defendant’s books and accounts, reporting thereon and making recommendations in relation thereto over a period from September, 1898, to December, 1903, and for disbursements amount ing to §95.89 incurred in connection therewith, and allege the reasonable worth of such services and disbursements to have been §7,931.59, and that only the sum of $250 had been paid thereon. The answer is in effect a general denial, except that it admits the payment of $250, and sets up a counterclaim for $26,279.96 for moneys embezzled by the defendant’s servant, alleged to have been due to the negligence, carelessness and want of skill of the plaintiffs. The plaintiffs furnished the defendant a statement, itemized by days, showing the time they and their servants were engaged in said work ; while this statement covers several pages of the record, it is long simply because it enumerates each day of the employment. Upon said statement, the pleadings and an affidavit setting forth-the issues to be litigated and enumerating a large number of books and accounts, which the defendant claims the plaintiffs were employed to examine and of which an examination on the trial is claimed to be necessary, the defendant moved at Special Term and obtained a compulsory order of reference pursuant to section 1013 of the Code of Civil Procedure, from which this appeal is taken.
It is claimed that the trial will involve the examination of a long account,first, to ascertain the services rendered by the plaintiffs; second, to ascertain the defalcations of the defendant’s servant, which are claimed to have extended over a period of several years, and to ascertain which will involve the examination of a large number of books. As to the latter claim, it is plain that the examination of the account referred to is only incidentally or collaterally involved, and is, therefore, not such an account as warrants a compulsory reference within the meaning of the statute. (Loverin v. Lenox Corporation, 35 A.D. 263" court="N.Y. App. Div." date_filed="1898-07-01" href="https://app.midpage.ai/document/loverin-v-lenox-corp-5185128?utm_source=webapp" opinion_id="5185128">35 App. Div. 263, and cases cited.) . As to the first claim, we think it equally plain that the trial will not necessarily involve the examination of a long account within the meaning of the statute. From the papers presented on the motion it is apparent that the two issues seriously to be litigated are the value
The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs.
Hirschberg, P. J., Hooker, G-aynor and Rich, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.