Smith v. London Assurance Corp.

Miller, J.: The plaintiffs complain bn a quantum meruit for services rendered the defendant as professional auditors and accountants in examining the defendant’s books and accounts, reporting thereon and making recommendations in relation thereto over a period from September, 1898, to December, 1903, and for disbursements amount ing to §95.89 incurred in connection therewith, and allege the reasonable worth of such services and disbursements to have been §7,931.59, and that only the sum of $250 had been paid thereon. The answer is in effect a general denial, except that it admits the payment of $250, and sets up a counterclaim for $26,279.96 for moneys embezzled by the defendant’s servant, alleged to have been due to the negligence, carelessness and want of skill of the plaintiffs. The plaintiffs furnished the defendant a statement, itemized by days, showing the time they and their servants were engaged in said work ; while this statement covers several pages of the record, it is long simply because it enumerates each day of the employment. Upon said statement, the pleadings and an affidavit setting forth-the issues to be litigated and enumerating a large number of books and accounts, which the defendant claims the plaintiffs were employed to examine and of which an examination on the trial is claimed to be necessary, the defendant moved at Special Term and obtained a compulsory order of reference pursuant to section 1013 of the Code of Civil Procedure, from which this appeal is taken. It is claimed that the trial will involve the examination of a long account,first, to ascertain the services rendered by the plaintiffs; second, to ascertain the defalcations of the defendant’s servant, which are claimed to have extended over a period of several years, and to ascertain which will involve the examination of a large number of books. As to the latter claim, it is plain that the examination of the account referred to is only incidentally or collaterally involved, and is, therefore, not such an account as warrants a compulsory reference within the meaning of the statute. (Loverin v. Lenox Corporation, 35 App. Div. 263, and cases cited.) . As to the first claim, we think it equally plain that the trial will not necessarily involve the examination of a long account within the meaning of the statute. From the papers presented on the motion it is apparent that the two issues seriously to be litigated are the value [870] of the plaintiffs’ services and the question of their carelessness cr want of skill. The mere fact that the statement of the time spent by the plaintiffs, when itemized by days, is long, does not make it a long, account within the meaning of the statute. It is manifest that these items can be so grouped on the trial that a jury will have no unusual burden. “ A party cannot be permitted to deprive his adversary of a trial by jury unless it affirmatively appears, with reasonable certainty, that the hearing of the case will require the examination,of along account. (Code, § 1013.) It is not sufficient to uphold a compulsory order of reference to demonstrate that there is a possibility that in the course of the trial the investigation of the correctness of siich an account may become necessary. (Thayer v. McNaughton, 117 N. Y. 111.) Facts must be disclosed, either by affidavit or upon the face of the pleadings, from which the conclusion can be fairly drawn that so many separate and distinct items of account will be litigated on the trial that a jury cannot keep the evidence in mind in regard to each of the items and give it the proper weight arid application when they retire to deliberate upon their verdict.” (Spence v. Simis, 137 N. Y. 616. See, also, Feeter v. Arkenburgh, 147 N. Y. 237.) It is apparent from the papers that .the services can all be embraced under two heads, to wit: First, those rendered before the discovery of said embezzlement, and, second, those rendered after such discovery. They were all performed under one employment, and are the same in character. The fact that they extended over a period of years and were performed on many different days does not necessitate the examination of a long account within the meaning of the statute. The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with costs. Hirschberg, P. J., Hooker, G-aynor and Rich, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.