
    Simmons v. Bigelow et al.
    
    
      (Supreme Court, General Term, First Department.
    
    July 9, 1889.)
    1. Reference—When Ordered.
    Where plaintiff alleges a contract between, himself and defendants’ testator, Whereby he agreed to give his entire time and services as a physician to testator for the reasonable value thereof, the cause of action does not require the examination of a long account, and a compulsory reference will be denied.
    2. Same.
    Nor does the fact that the plaintiff, in case he fails to establish the special contract, might be allowed to proceed as upon a quantum meruit, entitle him to the order, as the case, for the purposes of the motion, must be treated according to the averments of the complaint as then formulated.
    Appeal from special term, New-York county.
    
      Action by Charles E. Simmons against John Bigelow and others, executors of the will of Samuel J. Tilden, deceased. Plaintiff appeals from an order denying a motion for a compulsory reference. The following opinion was rendered by Ingraham, J., at special term: “The plaintiff in this action alleges that the plaintiff, at the special instance and request of Samuel J. Til-den, defendant’s testator, entered into an agreement with the said Tilden whereby it was agreed that this plaintiff should give to said Tilden his entire attendance, services, and time as a physician, to the exclusion of all other employment by other persons, when the same would prevent or interfere in the slightest degree with the immediate, constant, and continuous attendance upon said Tilden, if demanded or required by him, and for which attendance, time, and service the said Tilden promises and agrees to pay this plaintiff the reasonable value thereof; and that this plaintiff, in pursuance of such agreement, did give to said Tilden his entire attendance, services, and time from on or about the 29th of September, 1878, until the death of the said Tilden, August 4,1886; that the reasonable value of the services so given to said Til-den in pursuance of the aforesaid agreement was the sum of $143,350. The answer of the defendant denies the making of this contract, and alleges payment in full for all services rendered by the plaintiff to said Tilden. The defendant opposes the motion to refer, and claims the right to a trial by jury. This right to a trial by jury is a substantial right given to the defendant by the constitution and Jaws of this state. The law only authorizes compulsory references where it appears that the trial of an issue of fact will require the examination of a long account, and, when not referable under the statute, the case must be tried by a jury or by the court, unless the parties consent to some other mode of trial. Kainv. Delano, 11 Abb. Pr. (JST. S.) 35. The cause of action set up in the complaint is upon the special contract above referred to. That contract is one for the exclusive services of the plaintiff. It does not depend upon the number of visits paid by the plaintiff, nor the'value of those visits to Tilden. If plaintiff proves his contract, he is entitled to recover the reasonable value of the services of a physician of his standing and knowledge for the period covered by the contract. The bill of particulars furnished by the plaintiff is consistent with such a cause of action. After stating the days upon which he was in actual attendance upon Tilden, the bill of particulars states that the plaintiff specifies the reasonable value of the attendance, services, and time which he rendered and gave to the said Tilden, including the time he held himself in readiness under his retainer, as stated in the complaint, at the sum of $50 per day, from the commencement of the services to the death of the said Tilden, and it is for that $50 per day that he seeks to recover in this action. It is very clear that such a cause of action does not require the examination of a long account. I can see no difference between the contract set up in the complaint and the contract for the employment of a clerk or book-keeper for a specified period. In either case the employó would be entitled to recover the reasonable value of his services for the period for which he was employed, and in either case no examination of an account between the parties would be required. In a common-law action for the recovery, of a sum of money it is the right of the parties that the issues of fact involved should be tried by a jury, unless from the nature of the case or of the issues to be tried such a trial is impracticable; and I am convinced that not only is a trial by jury in this case practicable, but that it would be the most satisfactory way of disposing of the issues. Motion for reference will therefore be denied, with $10 costs.”
    Argued before Van Brunt, P. J., and Brady and Barrett, JJ.
    
      Fettreteh, Silhman & Seybel, (Joseph H. Choate, of counsel,) for appellant. Carter & Ledyard, (James C, Carter, of counsel,) for respondents.
   Per Curiam.

The order should be affirmed on the opinion of Ingraham, J., at special term. The only additional point made upon this appeal, not covered by Judge Ingraham’s opinion, is that, in case the plaintiff fails to establish his special contract, he may be permitted to proceed as upon a quantum meruit. Whether this can be done without an amendment of the present complaint we need not now decide. But the court cannot take such a possible contingency into consideration. We must treat the case, for the purposes of this motion, according to the averments of the complaint as now formulated. It is the character of the complaint, and that alone, which governs. The case made by the present complaint is not upon an account at all, but upon a special contract involving long and continuous service. For this service the plaintiff has charged a lump sum, and, although that lump sum may be made up of many daily visits, running through several years, the character of the action remains the same. It is well settled that such considerations are not controlling. The action must be upon an account, and its examination must be the immediate object of the action. Camp v. Ingersoll, 86 N. Y. 436; Kain v. Delano, 11 Abb. Pr. (N. S.) 29. That is not this case, and the action cannot be referred against the will of the defendants merely because at some stage of the trial the plaintiff may find it necessary to go over every part of his long service, and thus burden the court and jury by a tedious recital. The order should be affirmed, with $10 costs and disbursements.  