Russell v. McDonald

125 A.D. 844, 110 N.Y.S. 950, 1908 N.Y. App. Div. LEXIS 2912

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 22, 1908
• Status: Published

Opinion

Houghton, J.:

The action is to recover the value of services performed by attorneys, and the employment and value are both denied.

The hill of particulars furnished by the plaintiffs in addition to certain disbursements which are insignificant shows twenty-five separate charges for services, three of which are specified as retainers. The remaining twenty-two items relate to services performed in only five separate matters, and those not of a complicated character, consisting mainly of consultations, conferences and negotiations of settlements.

While an attorney is not precluded from demanding a compulsory reference on the ground that the trial of his action to recover the value of his services will involve the examination of a long account (Fester v. Arkenburgh, 147 N. Y. 237), still the tendency of the courts is to refuse such a reference (Hoff v. Reid & Co., 110 App. Div. 95 ; Prentice v. Huff, 98 id. 111; Stein v. New York News Pub. Co., 47 id. 550 ; Hoar v. Wallace, 24 id. 161; Hedges v. Methodist Protestant Church, 23 id. 347), except in extreme cases where it is reasonably apparent that the items are so numerous that a jury cannot hold them in mind and make a proper determination. (Lewis v. Snook, 88 App. Div. 343 ; Clinch v. Henck, 49 id. 183; Richards v. Stokes, 1 id. 305.)

Numerous itemized charges for one matter do not make a long account within the meaning of section 1013 of the Code. (Randall v. Sherman, 131 N. Y. 669.) Where the services relate to one matter, or can be grouped into so few separate matters that a jury can easily bear them iu mind, a compulsory reference is improper. We are of the opinion that such is the situation in the present action. The services rendered in each of the five separate matters can be testified to and the aggregate value of each given, and there will be no difficulty in a jury bearing them in mind and ascertaining the value of each and computing the total value of all.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, Laughlin, Clarice and Soott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.