I place my concurrence upon the ground that it does not appear that the contract referred to in the complaint contained a provision to pay an agreed sum for specified work. On the contrary, the complaint states that the services rendered and materials furnished “ were of. the value of’ $60,090.34, part of which, to wit, $48,346, was pursuant to a written contract, * * * and the balance of which, to wit, $11,744.34, was pursuant to further and additional directions, instructions and orders given * * * during the progress of the said'work.” A payment of $38,000 is admitted, leaving a general balance of $22,090.34. It thus impliedly appears *308that the work, labor and services rendered under the contract are as much the subject of a quamtum 'meruit as those rendered under the claim of extra work. If - the contract. had specified a fixed .sum to-he paid for the particular job the case would not be referable compulsorily merely, because the contract issues were .supplemented by other issues relating to numerous items of extra work. The defendant in that ease could not he deprived of his right to a trial by the court in the ordinary way with regard to the contract issues, because the trial of the incidental issues as to extra work happened to involve the examination of.a long account. In such a case the court should, as was said in Blake v. Harrigan (38 N. Y. St. Repr. 26), try the main issues upon the contract, and then send the long account of extra work tó a referee, if necessary.
Upon the record as here presented I agree that the presumption is in favor of the order appealed from.. It fairly appears that the trial of all. the issues raised by -the complaint -and answer will necessarily involve tl-ie examination of á long account.
The order should, for these reasons, as- well as those assigned by Mr. Justice Patterson, be affirmed, with costs.
Order affirmed, with ten dollars costs and disbursements.