Opinion
February Term, 1900.
Samuel Seabury, for the appellant.
J.S. L'Amoreaux, for the respondent.
Present — VAN BRUNT, P.J., PATTERSON, O'BRIEN, INGRAHAM and McLAUGHLIN, JJ.
We think that the order of reference in this case was improperly made. The action was brought to recover a balance alleged to be due the plaintiff's assignor as an attorney at law for the defendant in various matters. There are specific defenses set up, the first being that all legal services were rendered by the plaintiff's assignor to the defendant, under an express agreement by which the plaintiff's assignor rented from the defendant an office at a fixed rental, provided that he, the plaintiff's assignor, would, at all times during the continuance of his tenancy, render such legal services to the defendant as might be required; and, secondly, that the Statute of Limitations applied to a great number of items of the claim upon which suit was brought. The disposition of these defenses by the jury in favor of the defendant would obviate the necessity of the inquiry into the items of service.
We do not think that the examination of a long account, within the meaning of the adjudged cases, is necessarily involved in this action. The bill of particulars or schedule annexed to the plaintiff's complaint shows that the plaintiff's assignor demands compensation for services in a certain number of litigations and also for various consultations and drawing papers covering a period of some seven years. As to the services of the latter character, there is a uniform charge of $100 made for each year, except for the year 1898, when the charge was $50. So far as the actions are concerned, there is nothing which would render it at all difficult for a jury to bear in mind the evidence relating to them. In Hedges v. Methodist Protestant Church ( 23 App. Div. 348) we stated that the real test as to whether an action to recover for attorney's services should be referred or not, is that declared in Spence v. Simis ( 137 N.Y. 616), namely, that it must appear either by affidavit or on the face of the pleadings that the conclusion can fairly be drawn that there are so many separate and distinct items of account to be litigated on the trial that the jury cannot keep the evidence in mind in regard to those items and give that evidence the proper weight and application when they retire to deliberate upon their verdict. In looking over the schedule annexed to the complaint, we do not think that there would be any difficulty in intelligent men with average memories being able to pass upon each one of the subjects of service in respect of which the plaintiff claims a right of recovery.
The order must be reversed, with ten dollars costs and disbursements, and the motion for a reference denied, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.