
    Samuel M. Barnett, App’lt, v. Charles Scribner et al., Resp’ts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 14, 1894.)
    
    Reference—Compulsory.
    An examination of accounts is involved in an action for procuring subscriptions to a publication under a contract that plaintiff should be paid only where the subscriber accepts six volumes.
    Appeal from an order of reference.
    
      George H. Fletcher, for app’lt; Crane & Lockwood, for resp’ts.
   Pratt, J.

This is an appeal from an order of reference made at circuit during the trial, and after the examination of the plaintiff as its witnliSA It is plain from an examination of the pleadings that, to prove both the complaint and the answer, it will be necessary to examine accounts, if all the matters between the parties are to be examined. I think it plain there is but very little merit in the claim made by the plaintiff. Strictly speaking, it is a claim for damages for failure of the defendant to give the plaintiff a list of the names of subscribers furnished by plaintiff to defendant, who refused to take the volumes in question. Any damage over six cents, for such a claim, must necessarily be purely speculative. The plaintiff says, by not'having the list, he lost the opportunity to go to the delinquent subscribers, and get them to change their minds and accept the books , but what certainty- or proof is vouchsafed that he could effect such change, or what proof can be given upon a trial that one cent of loss can be sustained by failure to secure the lists ? The motive or inability of such subscribers, which caused them to refuse to receive the books, are matters entirely beyond the knowledge of the plaintiff, or his power to remedy. The suit is therefore purely uncertain and speculative.

The parties, however, seem to regard this suit as one for a balance due the plaintiff for services under a contract, and the claim for damages for not furnishing a list is mere padding. In this view of the case, a reference was proper. Chambers v. Appleton, 11 Wkly. Dig. 524; 84 N. Y. 649. The plaintiff desires to recover the contract price of all the subscribers he turned in to die defendant, but the contract was that he was to be 'paid only for such as accepted six volumes of a set of the work. These are all matters involving the examination of accounts. If, upon the trial, the plaintiff had been taken at his word,— that this was a suit alone for breach of the contract to furnish lists,— the complaint ought to have been dismissed for failure to show wherein he was damaged for breach of contract.

Order affirmed, with costs and disbursements.  