Levine v. Royal Bank

Giegerich, J. The action was brought to recover the reasonable value of certain work, labor and services alleged to have been performed and materials alleged to-have been furnished by the plaintiff to the defendant, less a certain payment admitted to have been received on account. The answer was a general denial. Upon the plaintiff’s motion the cause was referred to a referee to hear and determine the issues. The work was performed upon an apartment-house, known as ¡Number 510 West One Hundred and Twenty-fourth street, [227] borough of Manhattan, New York city. The papers contain a bill of particulars showing that the charge is made up of forty-three items, ranging from $3 to $62.50, and averaging a little less than $30' each. This is not the case of a long account within the meaning of the Code provision, and the defendant was entitled to a jury trial. Feeter v. Arkenburgh, 147 N. Y. 237; Spence v. Simis, 137 id. 616; Randall v. Sherman, 131 id. 669; Hedges v. Methodist Protestant Church, 23 App. Div. 347; Estes v. Dean, 1 id. 34; Fowler v. Peck, 51 Misc. Rep. 645; Smith v. London Assurance Corporation, 114 App. Div. 868. The work done, although performed upon forty-three different apartments in the apartment-house in question, appears to have been done under a single employment and to have constituted but a single transaction. The only work specified in the bill of particulars is papering and kalsomining; and none of the items making up the charge appears, from the record, to be at all complex in itself, and all of them must, of necessity, have been of a similar general character. The case was quite within the capacity of a jury to hear and determine and, as will be seen by an examination of the cases cited, compulsory references have been frequently denied in cases of much greater complexity and involving items much more numerous and much more difficult to pass upon and appraise. It may also be noted, although we do not think it necessary to the decision, that it -appears from the affidavit in opposition to the motion that there was no serious dispute as to the rendition of the services, but that the real question in issue is whether the person by whom the plaintiff was employed was the agent of the defendant. See Leary v. Albany Brewing Co., 66 App. Div. 407. The order should be reversed, with ten dollars costs and disbursements, -and the motion denied, with ten dollars costs. Hendrick and Ford, JJ., concur. Order reversed, with ten dollars costs and disbursements, and motion denied with ten dollars costs.