Cassidy v. . McFarland

34 N.E. 893, 139 N.Y. 201, 54 N.Y. St. Rep. 605, 94 Sickels 201, 1893 N.Y. LEXIS 989

Opinion

Maynard, J.

This action' was brought to foreclose a mechanic's lien for plumbing and gas fitting materials, furnished the defendants Gorman and Sylvander, who were sub-contractors, to do the plumbing in the course of the erection of three buildings in Yew York city for the defendant Frederick Wood, who was the contractor for the erection of the buildings for the defendant Joseph McFarland, the owner of the premises. McFarland was to pay Wood $67,158 for the erection and completion of the three buildings, and Wood was to pay Gorman and Sylvander $6,195 for the plumbing. The complaint alleges that the amount and value of the materials furnished by the plaintiffs are $4,382.00, no part of which has been paid, except $375 ; that there is more than $4,007 due and unpaid on the contract between McFarland and Wood, and more than that sum due and unpaid on the contract between Wood and Gorman and Sylvander. Gorman and Sylvander did not plead. Two of the other defendants, Orlofski and Cornet, filed liens and sought to foreclose them in the action, both against Wood, the contractor; one for painting work and material to the amount of $710, and the other for sand furnished to the amount of $900. All of the defendants, separately answering, deny that they have any knowledge or information sufficient to form a belief as to whether the plaintiffs furnished the materials, and they Avere of the amount and A'alue alleged. McFarland denies that there is anything due Wood on his contract, and Wood denies that he owes Gorman and Sylvander any sum on their contract.

There are A'arious other defenses, but they are not material to be considered here.

The plaintiffs did not notice the cause for trial, but it. was noticed by the defendants McFarland and Wood, and placed upon the calendar, and then referred by the court, upon its own motion, against the objection of the defendants, upon the ground that it appears from the pleadings that the trial of the action Avould involve the examination of a long account, and that no difficult questions of huv AA'ere involved. The General Term affirmed the order of reference, and the defendant has brought this appeal.

The order cannot be affirmed, we think, without disregarding repeated decisions of Jliis court. In Kain v. Delano (11 Abb. [N. S.] 29), it was held that a compulsory reference could not be ordered, unless it affirmatiA'ely appeared that the examination of a long account was necessarily involved upon the trial. In Thayer v. McNaughton (117 N. Y. 111), it was held that it is not enough to justify a compulsory reference that the case may, by possibility, involve the examination of a long account; that enough must be alleged or shown to justify the inference that such will be the course of the trial, and that the same rule applies to equitable as to legal actions. In Spence v. Simis (137 N. Y. 616), it was held that a compulsory reference could not be ordered unless it appeared with reasonable certainty that the hearing of the case will require the examination of a long account. It is not necessary that this proof shall be made by affidavit; it is sufficient if the fact clearly appears from the verified pleadings that the examination of a long account will be involved in the trial of the issues. The referable quality of the action must also be determined from the complaint. (Welsh v. Darragh, 52 N. Y. 590; Untermyer v. Beinhauer, 105 id. 521.) The General Term sustained the order because the plaintiff's lien was for plumbing material furnished for the equipment of three buildings, and, as he would be required to make proof of the quantity and value, the conclusion could be drawn that a long account was necessarily involved. We do not think that such an inference is permissible. For aught that appears the materials were all furnished at one time and constitued but one bill. Ch. J„ Bronson denied a reference in Swift v. Wells (2 How. Pr. 79), on the ground that one bill of goods containing fifty different items, delivered at the same time, was but one item, and this court, in the recent case of Spence v. Simis (supra), held that a bill for coal and -wood, furnished upon fifteen different occasions during a period of three years, did not necessarily make a long account within the meaning of the statute. The utmost that could jiroperly be inferred is that there might be a separate bill for each building, and thus that there might be three items of plaintiff’s claim. But the plaintiffs allege that the defendants Gorman and Sylvander agreed to pay for the materials furnished a specified sum in gross, and if this allega tion is sustained by the proof, as it may be, no investigation would be necessary in regard to the value of the several items, however numerous.

It is also apparent from the condition of the pleadings, that it is not probable that there will be any actual controversy .as to the materials furnished or their value. The defendants Gorman and Sylvander, who purchased them, make no defense, and so admit the averments of the complaint for the purposes •of this action. They are, presumably, the only parties, other than the plaintiffs, who have any personal knowledge upon the subject. The other defendants do not deny that the materials were furnished, and that they were of the value alleged, or that Gorman and Sylvander agreed to pay the price specified, or that they were used in the construction of the buildings. They are content to allege that they have no knowledge or information sufficient to form a belief as to the truth of these allegations. It must, therefore, be presumed that there is' no witness, or •other source of proof known to them, by means of which the falsity of the plaintiff’s demand can be established, or they could not have truthfully made this statement on oath.

It is true that by this form of denial the plaintiffs may be required to make proof of the details of their claim. But the •examination of a long account, which the Code contemplates, is, something more than mere formal proof of its existence. It imports an actual contest as to the correctness of the different charges, or, at least, of several of them; a prolonged examination of witnesses upon the issue, conflicting proof, and a judicial' inquiry and determination as to each one of numerous litigated items. Although under a denial of this kind the plaintiff may be compelled to prove the sale and delivery of each article, yet if this proof is not controverted so as to bring directly in issue each item or several items, with respect to their delivery or their value, it is plain that there will not be .such an investigation of a long account, within the meaning of the statute, as to authorize a compulsory reference.

It is insisted that under the pleadings the plaintiffs must prove performance by Gorman and Sylvander of their contract. with Wood, and the amount due from Wood, and also- performance by Wood of his contract with McFarland, and the amount, due from McFarland ; hut it does not follow that the examination of a long account would he necessarily involved in such proof. The amount to be paid the contractor in each ease was a lump sum, and payments made thereon would not •ordinarily he deemed an account in the legal sense. Whether the work had been done as agreed would require a reference to the contract, plans and specifications, and, it may he, an •examination of the work in detail; but it cannot be presumed ■or inferred that the solution of such a question will, of necessity, impose upon the court the labor of determining the correctness of a disputed or complicated account.

Trial by a referee is an exceptional mode of judicial pro-■c-edure, and when it is sought to coerce a suitor into a submission to it, the burden is upon the party applying for a reference to show by satisfactory proof that the case is within the excepted class. The rule is not different where the court, upon its own motion, undertakes to compel a reference. If there is conflicting- evidence as to whether the examination of a long account will be involved, the decision of the court below will not he reviewed here (Welsh v. Darragh, 52 N. Y. 590); but where there is an entire failure of proof upon the point, as we think there is in this case, it becomes purely a question of law for our •consideration. ,

The claim is made that experience has fully proved that “the proof of work done and materials furnished in mechanic’s lien cases, under allegations such as are contained in the pleadings before us, always involves the examination of a long account,” and that judicial notice might he taken of the knowledge which the court has thus acquired by experience in this class of cases. While a court may take judicial notice of what ought to he generally known within the limits of its jurisdiction, the experience of judges in the trial of causes, however valuable it may he as an aid in the-administration of justice, cannot he substituted for proof of an essential fact upon a judicial hearing. The results of the experience might vary with the dif ferent judges selected as the subjects of it. If we were to decide from the records which come here, we would be compelled to say that it has not infrequently happened in this, class of cases that there was no real contest over any matter of account, but the questions actually litigated have involved the relative liabilities of owners, contractors and sub-contractors, and the conflicting rights of lienors, and other controversies not in anywise involving the examination of a long-account.

As it is conceded that a trial of this cause has been had before the referee, we have been reluctant to reach a conclusion which will require a reversal of the order, but it cannot be avoided, we think, without overturning well-established principles which affect the substantial rights of litigants.

There is also an appeal here from an order of the General Term, affirming an order of the Special Term, denying a motion for a relaxation of costs. Upon the appeal from the order of reference, the General Term made an order affirming the same, “ with costs,” and not allowing any disbursements. The respondents procured the clerk to tax §10 costs and §9.06 disbursements for affidavits and acknowledgments, certified copies of orders, sheriff’s fees on execution and printing points. The appellants objected to the taxation, on the ground that the clerk had no authority to tax costs or disbursements; that the order of the General Term did not fix the amount of costs, and that no disbursements, could be allowed on the motion, except printing, and moved at Special Term for a re-taxation, which was denied. We think the motion should have been granted and the taxation set aside. Costs are the creature of the statute and cannot be imposed except in the cases authorized by its provisions. The clerk has no authority to tax costs, except such as may be conferred upon him by the statute or by the order of the court.

The hearing of the appeal at General Term is to be regarded as a motion for the purpose of costs, and the same sums might have been allowed as on the decision of a motion, $10, and printing disbursements. (§ 3251.) If this pro vision does not apply, then there is no authority for the allowance of costs upon such an appeal. Section 3256 has no-application; it refers only to costs awarded in an action. Under section 3251, the costs must be fixed by the court at a sum not exceeding §10. This was omitted in the present' case. As the customary allowance is the full sum of §10, the decision of the court, that the respondent have costs,, might properly be deemed a direction that he have the full amount, and the prevailing party might have caused that sum to be-inserted in the order of aftirmance when entered, and omitting to do so, the court might have amended the order upon motion. The order did not allow any disbursements. The utmost which could have been granted, under section 3251, were those for printing. The court is not required to fix the amount of these disbursements, but might direct in the order that they be taxed by the clerk. Without such a direction the clerk would have no authority to fix their amount. When so ordered he may adjust them and note his adjustment on the foot of the order, which will then show the exact amount of costs and disbursements allowed, and for the collection of which a precept can be issued.

The order of reference must be reversed, but as it was not made upon the respondent’s motion, the reversal should be without costs in any court.

The order denying the motion for a re-taxation must be reversed and an order entered setting aside the taxation, with, costs.

All concur.

Order" reversed.