
    HALE v. SWINBURNE.
    N. Y. Supreme Court, Third District; Special Term,
    
    
      July, 1884.
    
      Again, Third Department; General Term,
    
    
      May, 1885.
    Action for Services.—Reference of Action by Attorney for Services.
    In an action by attorneys for professional services, where it appeared from the complaint and plaintiffs’ affidavits upon their motion to refer, that the services were rendered in many and different proceedings, civil and criminal, and upon separate, distinct and several requests, and the opposing affidavits merely averred that the alleged services were all rendered in reference to matters connected with a certain election,—Held, that the cause was a referable one, and not within the decisions refusing to refer such an action where the services were all rendered in one action.
    The case of Benn v. Bank of Elmira (19 Week Dig. 306), distinguished.
    It appearing that upon the record there was a dispute as to the rendition of the services, as to whom they were performed for, if performed at all, and as to their value,—Held, that a reference should be ordered to three referees, one lawyer and two laymen, to be agreed upon by the parties, or otherwise named by the court.
    I. July, 1884.
    Motion by the plaintiffs for a reference to hear and determine the issues.
    Matthew Hale and another, partners as attorneys at law, sued John Swinburne, for professional services.
    The material facts appear in the opinion at special term.
    
      
      A. F. Bulkley, for the plaintiffs and the motion.
    
      Henry Smith, for the defendant, opposed.
   Peckham, J.

—The plaintiffs make a motion for a reference, which is opposed by the defendant.

The plaintiffs, in an affidavit, show that the action is brought by them for services rendered as attorneys and counselors at law for defendant, and that the trial of the cause will necessarily require the examination of a long account. A bill of items of plaintiffs’ claim is annexed to the affidavit, which bill embraces the rendition of services between April 12, 1882, and June 30, 1883, and covers .several pages of legal-cap paper in enumerating the various items.

It further appears from the affidavit that the services were rendered in various matters and proceedings, and reference is made to the bill of items as confirmatory of such allegation ; and it also stated in said affidavit that many of such services were rendered on the special and separate request of the defendant, and the affidavit then enumerates quite a number of services thus performed before the recorder of Albany in relation to criminal charges agáinst inspectors of election and in regard to alleged frauds in the Seventh ward and other services, and the affidavit states positively that these services were separate and distinct from the quo warranto action, and were performed upon distinct and several requests of defendant.

The defendant submits an affidavit in which he says that “ the only business that has transpired in which the plaintiffs were pretending to act on any side in a case or other matter in which I was in any wise connected as a party, or person in any wise, was about matters connected with the late election, at, which it was claimed I was elected mayor, and the certificate was awarded to Michael Nolan.”

The defendant then said, that so far as he knows, there is no dispute as to what services were actually performed by the plaintiffs, and that the points mainly in issue in this case are, 1st. What was the retainer, if any ? and, 2d. Were the services of any value to the defendant or any one else? The defendant then adds his opinion that the administration of justice would be better assured if the issues in this action could be tried by a jury.

The complaint alleges that the defendant retained the plaintiffs; and then alleges the performance of various services in divers criminal proceedings, and also in an action of quo warranto and in other matters, and states the value of the services performed. The answer denies that defendant retained or employed the plaintiffs to perform for him the services mentioned in the complaint, and denies that any such service as is alleged in the complaint was performed by the plaintiffs or either of them.

The general term has decided that the answer herein puts in issue the services rendered. In this respect the opinion of the general term is at war with the opinion of the defendant as expressed in the second paragraph of his affidavit, for the general term holds that the answer puts in issue the rendition of the services themselves, aside from the questions which defendant in his affidavit regards as alone in issue, viz.: for whom were the services rendered, and what was their value?

Upon these papers has a case been made out in which an order of reference, aside from any question of discretion, would be a valid order?

It may be here assumed that there should be a claim for services performed in more than one action or proceeding, in order to justify a reference, although 1 am not prepared to go the length of stating such a rule under all circumstances. Here the affidavit of one of the plaintiffs is clear and unequivocal, showing the performance of many different services in many separate and distinct proceedings, and upon separate, distinct and several requests from the defendant. This is not denied by the defendant, but, as already stated, he alleges that the business in which plaintiffs were pretending to act on any side in which the defendant was connected as a party or person, was about matters connected with the late election, at which it was claimed defendant was elected and the certificate was awarded to Michael Nolan.

This is no denial of the allegation of plaintiffs, pointedly made, that in many different matters and proceedings, both civil and criminal, and particularly specified in plaintiff’s affidavit, the plaintiffs rendered services at the special and separate request of the defendant in each matter.

1't may very well be that all services had relation to matters connected with the election for mayor, and yet it may equally well be that many services performed in such connection were in separate and distinct matters, some civil, some criminal; some in which defendant was a party and some in which the people were parties ; some having one purpose, and some having another and totally distinct purpose in view ; the relief asked for or to be awarded was different in different cases, the civil proceedings of quo warranto having for their object the placing the relator in the office of mayor, while the criminal proceedings had for theirs the punishment of criminals for a violation of law.

The evidence taken in one matter was inadmissible in any other, and the employment of the plaintiffs to perform the services incident to any one of the proceedings enumerated would not include the performance of any of the other services enumerated in the plaintiffs’ affidavit.

This case is, therefore, brought entirely out of that line of decisions holding that a case ought not generally to be referred where the services in one action only are involved ; the reason being that in such case the contract of the attorney is entire to carry out the suit to its termination, and the various steps which he takes in the case do not aid in making up a long account within the meaning of the law. It seems to me clear that this cage is, in such view, essentially different.

In this light, there is no conflict between this case and that cited by the counsel for defendant of Benn v. Bank of Elmira (19 Weekly Dig. 208).

I have seen the opinion of the court in that case, delivered by Lkakned, P. J., and the fact of there being but one action, a single retainer for services in one action only, is the ground upon which the decision therein rests.

I think this is clearly a referable case. Should it be referred ? I am quite clear upon that question also, and I think it should.

The affidavit of plaintiffs, the"pleadings and the affidavit of defendant, taken together, quite convince me that there is, on the record, a dispute as to the rendition of services,* as to whom they were performed for, if performed at all, and as to their value ; in other words, there are issues as to all the material matters going to make up a case in favor of plaintiffs and against defendant, excepting as to the partnership and the profession of the plaintiffs.

If an attorney’s account should ever be referred, it seems to me that this is such a case.

I am not prepared to say that a claim on the part of an attorney against an individual for services rendered in many and different proceedings and cases, upon separate, distinct and several requests, embracing a very large number of items, and quite a number of separate and distinct proceedings, should never be referred, and, on the contrary, I think this is a very proper case for snch reference. I have not overlooked, the allegation in the complaint that on April 12, the defendant retained plaintiffs, and requested plaintiff Hale to take charge of various civil and criminal proceedings, &c.; but upon reading the affidavit of one of the plaintiffs which upon that point is undenied by "defendant, the allegation is plainly made that there were various services, and separate, distinct and several requests by defendant for their performance. The .allegation in the complaint is obviously directed more to the fact of a retainer by defendant, than to the question of the separate and distinct services, and this question of the character of the services, their rendition upon several and distinct requests, is met in plaintiffs’ affidavit, used for this motion, and a detailed statement of the distinct and separate services rendered is given, and there is no denial of any of this portion of the affidavit in the answering one of defendant.

Upon the whole case, "I think the facts render a reference the appropriate disposition to be made of this "case. I shall order the case referred to three referees, one lawyer and two laymen, as suggested on the argument, and if an agreement cannot be had as to the referees, the court will name them.

The order may be settled before me on two days’ notice.

II. May, 1885.

Defendant appealed to the general term from the order of reference, and the order was affirmed upon the above opinion of the special term.  