Opinion
December Term, 1897.
Fred H. Norton and John N. Carlisle, for the appellant.
Arthur H. Abbott, for the respondent.
We adopt and approve the language of the court in Martin v. Windsor Hotel Company (10 Hun, 304), as follows: "There is no fixed rule which prevents the reference, of an attorney's account for services, to another attorney, and yet courts should be careful to avoid referring such cases to members of the same profession where there appears upon the face of the claim good reason to suppose that the client's resistance on the ground of exorbitance and oppression may prove to be well founded. It is not because such referees will not do equal and full justice to the parties, but because of a general impression that on questions of compensation for legal services, lawyers may not be, and sometimes are not, unprejudiced in determining values. A physician is not chosen as referee on physician's accounts, nor are clergyman when a pastor sues for the value of his services, and so, also, as to all other trades and professions, and in the popular mind it is, not without some show of reason, thought invidious that lawyers only should be selected to determine the claims of lawyers. It is better for the profession and for the courts that this should not be so, and the honor and well being of the profession requires that lawyers should not be thought to shirk from an examination of their charges by a jury enlightened by the opinions of other lawyers as witnesses and by the instructions of the courts."
In the case now before us one of the defenses asserted by the defendant is the alleged negligence and incompetency of the plaintiff. What the court said in Martin v. Windsor Hotel Company, as to the impression that referees might not be unprejudiced in determining the value of professional services, applies with additional force when they are called upon to pass upon the competency or incompetency of the lawyer rendering those services.
It has also been held that an action to recover damages arising from the alleged negligence of an attorney, or want of skill on his part, is not referable. ( Hoffman v. Sparling, 12 Hun, 83.)
In ordinary cases it has been held that 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, an investigation as to the correctness of such account may become necessary; and that a party cannot deprive his adversary of a trial by jury unless it affirmatively and with reasonable certainty appears that the trial of the case will require an investigation of a long account. 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 items of account will be litigated on the trial that the jury cannot keep the evidence in mind in regard to each of the items, and give it its proper weight and application. ( Thayer v. McNaughton, 117 N.Y. 111; Spence v. Simis, 137 id. 616.)
An attorney bringing an action for his services, and desiring a reference thereof, should be compelled to make it very clearly appear that the trial of his action will not, possibly or probably, but necessarily, involve the examination of a long account, so that the court will have no alternative but to make the order asked for. The plaintiff in this case, I do not think, has in that respect met the burden resting upon him.
The complaint is unverified; attached to it is a schedule of items of his account against the defendant; a great number of these items arise out of services alleged to have been performed in three separate actions wherein he appeared and acted for the defendant.
Within the cases of Randall v. Sherman ( 131 N.Y. 669) and Feeter v. Arkenburgh (147 id. 237) the services rendered by him in each of those actions are essentially single, although requiring distinct steps and proceedings on his part, so that each action, together with all the services and proceedings in it, constitutes but a single item, and thus altogether they constitute but three items of account.
In his schedule are several other items not embraced within the three actions referred to. The dates of the rendition of the services specified in these items are not set forth in the schedule attached to the plaintiff's complaint, but their dates are set forth in the defendant's answering affidavit upon this motion, and declared by him not to constitute a portion of the services in either of said actions, and they appear to have been rendered, if at all, prior to the year 1888. One of the defenses asserted by the defendant in his answer to the claim of the plaintiff is the Statute of Limitations, to this there is no reply upon the part of the plaintiff in his moving affidavit. If that defense is well founded there will be no occasion to examine into any portion of the plaintiff's account above referred to.
So far as the pleadings are concerned, color is lent to that defense by the fact that the plaintiff's complaint states that his services commenced in 1885, and by the fact that no dates are given in the schedule attached to the complaint. It may be that the plaintiff can show matter in avoidance of the statute, but he has not done so; his moving affidavit is silent upon that question.
So that neither from the pleadings nor from the moving affidavit, nor from both together, does it affirmatively appear that the trial of this action will necessarily involve the examination of a long account.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.