
    SUPREME COURT.
    John W. Stebbins, respondent, agt. Dwight B. Cowles, appellant.
    
      Reference — Action by an attorney for services—Defense, payment; and that the services were performed negligently — When referable —Appeal — When discretionary orders not reviewable.
    
    In an action brought by an attorney for services, the complaint contained a single count alleging such services generally, and the bill of particulars furnished by plaintiff specified numerous items extending through a period of four years; the answer admitted generally that the plaintiff performed services for defendant “ during the term and as stated in the complaint,” but with that exception denied the complaint and alleged payment, and that the services were performed negligently. The plaintiff having moved for a reference, the defendant admitted that the items of plaintiff’s bill of particulars were correctly stated as to their number and date and character of service, but not as to their value:
    
      Held, that all the items of the account, their nature and value must be proved, and the trial would involve the examination of a long account and was referable.
    
      Held, also, that the action was one which the county court had power to refer in its discretion, and the order being discretionary the supreme court cannot review it on appeal.
    The decision of one tribunal resting in discretion are not reviewable by another. This rule does not apply to a review by the general term of this court of the decisions of the special term, they being parts of the same court. But the county court being an independent tribunal, this court cannot interefere with the exercise of its discretionary powers.
    
      Fourth Department, General Term, October, 1883..
    
      Before Smith, P. J., Hardin and Barker, JJ.
    
    Appeal from an order of the the Monroe county court deciding that the action he referred for trial.
    W. Henry Davis, for appellant.
    I. On the 2d day of October, 1882, the Monroe county court denied plaintiffs motion for a reference herein. It was therefore error to arbitrarily and against defendant’s objection to take this case from, the jury and send it to a referee. If there was a long account upon the part of plaintiff, the admissions of defendant, as incorporated in the order, obviated any such objection. If the court had the power to take the case from the jury with the order of October second still in full force and operation, the only way it could have done so would have been by withdrawing a juror. This was not done. The whole of plaintiff’s account is in fact but one item, for defendant admits the account as stated, but alleges the services were worthless, unskillful, etc. It was error for the court to decide that all the items of account, their nature and value must be proved. Under the order it was only necessary to prove their value in gross.
    II. The answer alleges unskillful and fraudulent conduct of plaintiff. As to the unskillful part, the allegation is pretty well sustained by his own showing upon the trial of this case. It was error for the court to decide that no difficult questions of law would arise upon the trial. The pleadings show otherwise, and nothing was developed upon the trial to justify such a conclusion. There was only $867 in controversy in all the suits and business with which plaintiff had to do. Defendant has paid him $495, and he now seeks $425 more. This is unmeasured and exorbitant pay, and all the issues raised by the pleadings should be submitted to a jury.
    III. The action should not have been referred (Martin agt. The Windsor Hotel Co., 10 Hun, 304; Felt agt. Tiffany, 11 Hun, 62; Bathgate agt. Haskin, 39 N. Y. 533; Brink agt. Republic Fire Ins. Co.. 2 N. Y. S. C. (T. & C.), 550; Thomas agt. Neat, 6 Wend., 503; Dickinson agt. Mitchell, 10 Abb., 286; Hittenhoeffer agt. Lewis, 5 Daly, 72; Warning agt. Chamberlain, 14 N. Y. Weekly Dig., 564). Prior to the constitution of 1846, a.compulsory reference of the case sub judice could not have been ordered. By section 2 of article 1 of that instrument, it is provided that “ the trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever.” Ho power has existed since that time whereby this right could in any wise be interfered with without the consent of the parties. This, in the language of the court, is the “paramount law upon the subject,” and which courts of justice are ever vigilant to guard and maintain.
    The order of reference should be reversed.
    
      John W. Stebbins, respondent in person.
   Smith, P. J.

The action is brought to recover for services as an attorney and counselor at law. The complaint contains a single count alleging such services generally, and the bill of particulars furnished by the plaintiff specifies numerous items, extending through a period of four years, including services rendered in four separate suits. The answer admitted generally that the plaintiff performed services for defendant “ during the time and as stated in the complaint,” but with that exception denied the complaint and alleged payment, and that the services were performed negligently.

The plaintiff having moved for a reference, the defendant admitted that the items of plaintiff’s bill of particulars were correctly stated as to their number and date and character of service, but not as to their value, and therefore the motion was denied. Subsequently the cause came on for trial before the county court, and the plaintiff having proceeded in part with his proof and offered evidence as to value which was objected to by the defendant, the court decided that all the items of the account, their nature and value must be proved, and ordered a reference. From that order this appeal is taken.

We think the appeal cannot be maintained. The action was one which the county court had power to refer in its discretion. The numerous items of the account were not so fully and distinctly admitted as to preclude the necessity of giving evidence of their nature as well as their value, as seems to have been demonstrated by the partial trial of the cause. The facts warranted the conclusion of the court below, that the trial involved the examination of a long account. The order being discretionary we cannot review it.

The decisions of one tribunal resting in discretion, are not reviewable by another (Ward agt. Wiles, 24 N. Y., 635; Tanner agt. Marsh, 53 Barb., 438). That rule does not apply to a review by the general term of this court, of the decision of the special term, they being parts of the same court. But the county court being an independent tribunal, this court cannot interfere with the exercise of its discretionary powers.

The learned counsel for the appellant cites cases in which a reference of an attorney’s account has been refused. No case has gone so far as to deny the power to refer in such a case; they all rest upon circumstances of discretion (Martin agt. The Windsor Hotel Company, 10 Hun, 301), or upon the ground that the action did not involve a long account (Felt agt. Tiffany, 11 id., 62).

The appeal should be dismissed, with ten dollars costs and disbursements.

Hardin and Barker, JJ., concurred.

So ordered.  