Opinion
Argued November 12, 1901
Decided November 19, 1901
William D. Brinnier and John W. Searing for appellants. Howard Chipp and Charles F. Cantine for respondent.
This appeal was taken by virtue of an allowance thereof by the Appellate Division of the Supreme Court. The question certified for review is, "Was the order of reference granted herein authorized by section 1013 of the Code of Civil Procedure?" The action was to recover for the professional services of the plaintiff's testator as an attorney and counselor at law. They were performed under a general retainer to act for the defendants in probating the will of their testator and in performing "such acts as might be necessary, not only in respect to the probate of said will, but in connection with the management of the estate." The services performed were of that character. No issue is raised by the pleadings as to their performance, but the defendants deny that they were of the value alleged.
The only question of law is whether the trial of this case will require the examination of a long account within the meaning of section 1013, as interpreted by the decisions of the courts. We think the question must be negatively answered. Although that section has been the subject of many decisions by this and other courts in the state, which may not always have been in entire harmony, yet the facts and questions here involved are so similar in all essential respects to those in Feeter v. Arkenburgh ( 147 N.Y. 237) that the order appealed from cannot be sustained without disregarding or varying the doctrine of that case. That we are disinclined to do, but think we should follow it and reverse the order appealed from.
The order should be reversed, with costs in all the courts, the motion denied, and the question certified answered in the negative.
PARKER, Ch. J., O'BRIEN, BARTLETT, VANN and LANDON, JJ., concur; HAIGHT, J., absent.
Ordered accordingly.