
    (56 Misc. Rep. 606.)
    LUSTGARTEN v. HARLAM.
    (Supreme Court, Appellate Term..
    December 12, 1907.)
    ReFBBENEC—COMPUXSOBY REFERENCE—EXAMINATION OF LONG ACCOUNT.
    In an action by a physician to recover for services rendered, defendant’s wife between certain dates, the complaint alleged that the reasonable value of the services was a certain sum, that defendant agreed to pay the same, and that later plaintiff rendered further services by giving advice over the telephone. Annexed to the complaint was a schedule setting' forth the number and dates of the alleged visits to defendant’s wife; but no schedule was given of the telephone calls. Defendant’s answer admitted the hiring, but denied any knowledge as to the number of visits. It also denied that defendant agreed to pay plaintiff the sum alleged, or that such sum was the reasonable value of the services, and also denied all of plaintiff’s allegations as to the telephone calls and their value. In his affidavit opposing plaintiff’s motion for a reference, defendant swore that the services were rendered his wife while she was suffering from one illness. Held, that it was error to order a reference against defendant’s will.
    [Ed. Note.—For cases in point, see Cent Dig. vol. 42, Reference, §§ 13-23.]
    Appeal from City Court of New York, Special Term.
    Action by Sigmund Lustgarten against Moses Harlam. From an order granting a motion for a compulsory reference, defendant appeals. Reversed.
    Argued before GILDERSLEEVE, P. J., and GUY and BRUCE, JJ.
    Kellogg, Beckwith & Emery (Robert W. Crawford, of counsel), for appellant.
    Edgar H. Rosenstock, for respondent
   PER CURIAM.

Plaintiff made a motion for a compulsory reference, upon the ground that the trial of the issues would involve the examination of a long account and that no difficult or intricate question of law would arise on the trial. This motion was granted, and from the order granting the same defendant appeals.

The complaint sets forth that plaintiff, as a physician, rendered services to defendant’s wife between May 18, 1906, and March 1, 1907, and that for said services defendant promised and agreed to pay to plaintiff tbe sum of $1,455, which was, according to the complaint, the reasonable value of such services; that defendant has paid $750 on account; that -between October 13, 1906, and February 37, 1907, plaintiff rendered further and extra services by giving advice over the telephone, which extra services were worth $300, making a total claim of $1,005, for which plaintiff demands judgment. Annexed to the complaint is a schedule setting forth 1 alleged visit at $5, 101 alleged visits at $10 each, 36 alleged visits at $15 each, and 3 alleged visits at $35 each, with the date of each alleged visit, making up an alleged claim of $1,455, upon which $750 are acknowledged to have been paid. No schedule is given of the alleged telephone calls, for which plaintiff claims $300, in addition to the balance of $705 alleged to be due for the visits, making, as we have seen, a total claim of $1,005. The answer admits the hiring of plaintiff by defendant, but denies knowledge or information sufficient to form a belief as to the number of visits. It further denies that defendant agreed to pay to plaintiff the sum of $1,455 for the services rendered, or that such sum was the reasonable value of such services, and it also denies all of plaintiff’s allegations concerning the alleged telephone calls and their alleged value. In his affidavit opposing the motion for a reference defendant swears that whatever services were rendered by plaintiff to defendant’s wife were rendered while she was suffering from one complaint, and that the said services did not cover any separate illness of defendant’s wife,, which seems to be a reasonable inference from the allegation of the complaint that the services were rendered to defendant’s wife for a malady under which she labored. It seems to us that the proof as to-the number of visits and telephone calls would be merely formal, and: that the alleged long account is not the immediate object of the action, and is not directly, but only collaterally, involved.

The main issue is: Did defendant promise to pay plaintiff the sum alleged, and was that sum the reasonable value of the visits and telephone calls ? It would take but a short time to testify as to the number and dates of the alleged visits and telephone calls, and there is nothing in the papers in this case which would indicate that an average jury coúld no fully bear in mind and appreciate the evidence relating to the nature and value of the alleged services claimed to have been rendered by plaintiff to defendant. Under the conditions above indicated it was error to order a reference against the will of defendant. Camp v. Ingersoll, 86 N. Y. 443-436; Aronin v. Philadelphia Casualty Co., 54 Misc. Rep. 630, 104 N. Y. Supp. 810; Spence v. Simis, 137 N. Y. 616-618, 33 N. E. 554; Hedges v. Methodist Protestant Church, 33 App. Div. 347, 348, 48 N. Y. Supp. 154; Feeter v. Arkenburgh, 147 N. Y. 237, 41 N. E. 518; Prentice v. Huff, 98 App. Div. 111-114, 90 N. Y. Supp. 780; Randall v. Sherman, 131 N. Y. 669, 30 N. E. 589; Cantine v. Russell, 168 N. Y. 484, 61 N. E. 769.

The order is reversed, with $10 costs and disbursements, and the motion for a reference is denied, with $10 costs.  