
    Francis P. Pace and Henry C. S. Stimpson, Composing the Firm of “Pace & Stimpson,” Respondents, v. Otto P. Amend and Robert M. Catts, Defendants, Impleaded with Charles D. Warren and Wolfram Wire Company, Appellants.
    First Department,
    November 6, 1914.
    Reference — attorney and client — action for professional services — examination of long account.
    Where, in an action by attorneys to recover for professional services rendered on a quantum meruit, it is alleged that the services were rendered between certain dates, and were performed in the acquisition and development of certain patents, and in the organization of .the defendant company, and their bill of particulars contains a great number of items, but it does not appear therefrom, or from the complaint, that there was a separate employment for each item of services, the examination of a long account, within the meaning of section 1013 of the Code of Civil Procedure, is not involved, and a reference should not be granted.
    The fact that it will become necessary to consider various items of services in determining the value of all the services rendered under a general retainer, does not involve the examination of a long account and render the action referable.
    Where attorneys move for a reference of issues involving their claims for professional services, they should affirmatively establish their right thereto with reasonable certainty.
    Appeal by the defendants, Charles D. Warren and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of August, 1914, appointing a referee to hear and determine the issues herein, without the consent of the appellants.
    
      Harry R. Kohn, for the appellants.
    
      Willard H. Olmsted, for the respondents.
   Latjghlin, J.: "

The action is brought by afirm of attorneys to recover $100,000 for professional services rendered on a quantum meruit. The allegations of the complaint are brief and merely to the effect that the services were rendered between the 12th day of October, 1912, and the commencement of the action, in which the summons bears date the 7th day of August, 1913, and were performed “in and about the acquisition, development and exploitation of certain patents and the subject-matter thereof, as well as concerning the organization and operation of the defendant Wolfram Wire Company.” The answers of the appellants are general denials. The plaintiffs have furnished a bill of particulars of the services alleged to have been rendered, containing a great number of items and extending over forty-five pages of the printed record. It is not alleged in the complaint, and it does not appear by the bill of particulars, that the plaintiffs claim that there was a separate employment for each item of services set forth in the bill of particulars; and it is manifest therefrom that the entire services relate to comparatively few matters only, and all relate directly or indirectly to the two subjects specified in the complaint, namely, the patents or the organization or operation. of the defendant company.

I think the fair construction of the allegations of the complaint is that there was but a single retainer in the case at bar, • and the value of the services is claimed to be $100,000. Counsel for respondents seeks to sustain the order of reference on the ground that all the items of services and the value thereof are controverted. As the plaintiffs have presented the issue, it will not be necessary to determine separately the value of the various items of services performed. They estimate their claim to recover upon the basis of the reasonable value of all the services performed taken together. The questions to be litigated will be whether the plaintiffs were employed and the value of the services rendered, to be determined as a single charge, or by ascertaining the value of the services relating to particular matters in the course of the employment. It is not apparent that this will involve the examination of a long account) within the meaning of section 1013 of the Code of Civil Procedure. The fact that it will become necessary to consider various items of services in determining the value of all the services rendered under a general retainer does not involve the examination of a long account and render the action referable. (Prentice v. Huff, 98 App. Div. 111; Russell v. McDonald, 125 id. 844; Feeter v. Arkenburgh, 147 N. Y. 237; Randall v. Sherman, 131 id. 669.) A party cannot be deprived of a trial before the court or jury unless the case clearly falls within the provisions of said section 1013 of the Code of Civil Procedure (Steck v. C. F. & I. Co., 142 N. Y. 236; Spence v. Simis, 137 id. 616); and it has been held that the burden rests upon the party moving for the order of reference to show affirmatively with reasonable certainty that the trial will involve the examination of a long account. (Smith v. London Assurance Corporation, 114 App. Div. 868.)

These requirements are enforced with special strictness where attorneys move for a reference of issues involving their claims for professional services. (Russells. McDonald, supra.) The respondents rely upon Lewis v. Snook (88 App Div. 343; affd., 179 N. Y. 519); but there it appeared that it was necessary to determine separately the value of forty-five different items of services, and even in that case the reference was sustained by a bare majority vote in the Appellate Division. The Court of Appeals expressed no opinion with respect to the propriety of the order of reference in that case, but merely held that section 1013 of the Code of Civil Procedure conferred authority to make the order. We are of opinion that the plaintiffs failed to show that they were entitled to have the issues referred.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

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