■The amount of disbursements contained in 'the itemized bill of the plaintiffs is conceded and that the services set forth were actually performed as claimed by the respondents. A stipulation covering these items or facts could be made as a condition of refusing to refer "the case.
Eliminate these questions and we have a controversy as to whether the services were actually rendered for the appellant. That certainly is a question of fact which a jury should pass upon and particularly so as the parties pressing the claim were lawyers.
That leaves as substantially the only question the value of the services rendered by the plaintiffs. It is quite obvious, reading between the lines, that the value of these services is the only question which will be litigated upon this trial. I am unable to find a case where a reference has been ordered when the issue, however extended it may be or however numerous the items, simply involved the value of the services which go to make up,the account.
In any action where an attorney sues for services extending Over *349a series of years involving trials and appeals lie may make up an extended itemized account. In one case, where a reference was denied, these items aggregated 150 in number (Feeter v. Arkenburgh, 147 N. Y. 237) ; in another 125 items (Spence v. Simis, 137 id. 616). The courts, I find, are very chary, and properly so, about granting compulsory orders of reference in actions brought by attorneys. (Cantine v. Russell, 168 N. Y. 484; Hedges v. Methodist Protestant Church, 23 App. Div. 347; Randall v. Sherman, 131 N. Y. 669.)
Attorneys representing plaintiffs are very reluctant to have questions of fact in common-law actions taken from the jury, and they of all litigants ought to be willing to adhere rigidly to the rule that the jury is the tribunal for their determination.
Assuming that there are questions of a “ complicated nature ” involved, that furnishes no reason why an order of reference should be directed against the protest of the defendant. The only ground upon which the order of reference can be sustained is that it involves the examination of a long account. If the questions of a “ complicated nature ” are of law, that is a reason specifically stated in the statute (Code Civ. Proc. § 1013) why the order of reference should not be granted. If these intricate questions are of fact, it is no reason for granting the order.
I think the order should be reversed.
Williams, J., concurred.
Order affirmed, with costs.