Tracy v. Stearns

Daniels, J.

The aetión was brought to recover the amount of the plaintiffs’ demand for services and disbursements rendered and made by them as attorneys in prosecuting an action in the supreme court. The bill of particulars contained a large number of charges, and for that reason it was deemed a long account within the meaning of the rule existing upon this subject, and for that reason the reference was ordered. But as the services were performed and the disbursements made in the prosecution of a single action, that rule is not applicable to the case.

The cause of action was still a single subject-matter, not within the rule permitting a compulsory reference to be ordered. It was a case, on the contrary, which the authorities are quite uniform in holding should he tried hy a jury, unless both parties agree to its trial before a referee (Brinck agt. Public Fire Ins. Co., 2 N. Y. Sup. Ct. [T. C.], 550; Barthgate agt. Haskin, 59 N. Y., 533; Felt agt. Tiffany, 11 Hun, 62; Martin agt. Windsor Hotel Co., 10 Hun, 304; Dittenhoefer agt. Lewis, 5 Daily, 72; Daily agt. Gescheidt, 9 Reporter, 254).

Under the rule sustained by these authorities the order made was not authorized. It should therefore be reversed, with costs to abide the event.

All concur.