This case comes within the rule laid down by the Court of Appeals, in Welsh v. Darragh (52 N. Y. 590), that if the facts show that the examination of a long account may be necessary, and the court below has decided to refer the action, an ap
The action in the present case was brought for work done and materials furnished, to which there was a counterclaim; and the defendant who moved for the reference swore that more than one hundred items in the plaintiffs’ bill were in dispute, and the whole of the counterclaim. The only difference therefore between this and the case above cited, is that this is an action for work and materials, and the other was for the sale and delivery of merchandise : but this does not affect the question whether a reference should he ordered or not, for there may be a long account in a claim for work and materials, as well as in one for the sale and delivery of merchandise.
The word “ account,” as will be found by looking into Murray’s New English Dictionary (Oxford, 1884), where four columns are devoted to it, is a word of wide and varied signification. An account, in its most general meaning, is a reckoning or statement of items or details. It is not necessary that there should be, as the appellant claims, items upon both sides, for there may be a long account of sales of merchandise, or of work done, or materials furnished, embracing only the items of the merchandise delivered or of the work done; and it is expressly provided by statute that if the action is on contract and the trial of it “ will require the examination of a long account on either side” it may be referred (L. 1845, p. 163; 2 Jones & Varick, N. Y. L.
A reference is ordered for the trial of an action where an. account or accounts have to be investigated and examined to ascertain the true state of the indebtedness, in which cases the referee has to exercise more or less of the functions of an auditor or accountant; or it will be ordered where many items in the claim are contested, in respect to each of which items separate evidence will necessarily have to be given, because it is very difficult, or impossible, if the items are numerous, for a jury to keep in their mind the exact evidence as to each particular item, so as to pass intelligently upon all in arriving at .the general result, which a referee can do, as the evidence is taken down in writing, and he has the opportunity, after the case is submitted, to read over every part of the testimony, thoroughly and carefully, before making Iris decision. There may be a long account on either side, as in an ordinary bill of parcels ; but that is not what is meant by “ the examination of a long account ” in the Colonial Statutes of 1768 arid the succeeding statute of the state in 1788 (2 Jones & Varick N. Y. L. 270). The examination there referred to, in the language of Chief Justice Nelson in Silmser v. Redfield (19 Wend. 22), applies only to cases where accounts, in the common acceptation of that term, exist that may require examination. It does not apply to actions of tort, however numerous may be the items of the damages involved (Johnson v. Parmly, 17 Johns. 129; Harris v. Bradshaw, 18 Johns.
Broadly expressed, a reference is allowed in actions upon contract, where numerous items are contested, from the intrinsic difficulty of deciding such a controversy without the instrumentality of a referee; and this is a case of that kind, as more than one hundred items in the plaintiffs’ claims are contested, with which is involved the damages claimed in the counterclaim for breaches of the plaintiffs’ contract.
The order should be affirmed.
Lakremoiíe and Van Hoesen, JJ., concurred.
Order affirmed.