
    Alonzo Robertson, Resp’t, v. James Murray et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed December 8, 1893.)
    
    Reference—Compulsory.
    The complaint alleged that goods were sold and delivered to defendant at their request as stated in annexed schedule, amounting to $3,616, it appeared from the schedule that the sales were made on thirteen different dates; the complaint stated that certain payments had been made and that there remained due a balance of $293; the answer admitted the sale on credit and the delivery of the goods, and that there had been paid $3,322, but contained a denial of the other allegations. Upon application at circuit for an order of reference to hear and determine, plantiffs’ affidavit, after showing above facts referred to a hill of particulars in confirmation thereof, which bill did not appear in the appeal papers. Held, that the order granting the reference would not he disturbed on appeal.
    
      Appeal from an order made at the Broome circuit in May, 1893, ordering a reference to hear and determine.
    
      Charles D. Bloomfield and Frank 3. Williams, for app’lt; W D. Fdmister., for resp’t.
   Hardest, P.

J.—Plaintiff’s complaint alleges that goods were sold and delivered to the defendants at their special request and instance as stated in a schedule attached to and forming part of the complaint, amounting in value to $3,616,02. By reference to the schedule it appears that the sales were made on thirteen different dates between August 11, 1891, and December 7, 1891. The complaint states that certain payments - had been made and that there remains a balance due the plaintiff of $293,14. The defendants admit “ that the goods sold by the plaintiff to the defendants were sold upon credit,” and that there had been paid to the plaintiff $3,322,88. The answer then contains a denial of every other allegation “ in said complaint contained except as hereinafter set forth and contained.” Apparently it will become necessary upon the trial of the action for the plaintiff to make proof of all the sales referred to in his schedule attached to his complaint and thus establish the items of his account.

Upon the application for the order at the circuit an affidavit was read in which it is stated: “ That plaintiff claims a balance due him upon an open account, but the defendants by their answer claim settlements from time to time between the dates above specified, and also claim many credits and discounts on account of such sales as aforesaid, which items of credit and settlements are denied. * * * That the trial of the aforesaid issue will, in' deponent’s opinion, require the examination of a long account of both'parties as to charges and credits; and deponent respectfully refers to the pleadings and bill of particulars herein in confirmation of this affidavit.” In an earlier portion of the affidavit it appears that a bill of particulars had been served. We find no bill of particulars in the appeal book. Apparently, therefore, it is inferable that a bill of particulars was used before the court when the order was made which is not presented to us. If that be so, the court had the benefit of that bill of particulars which has not been presented to us by the appellant in the appeal papers submitted to us.

Our attention is called to Spence v. Simis, 22 N. Y. Supp., 76 ; 49 St. Rep., 636, which was a case somewhat like the one before us ; it was held in that case, viz.: “In an action for goods sold and delivered, where plaintiff, on the answer, may be bound to prove each item of his account, consisting of twenty-five items, and he does not stipulate, on defendant’s motion for a reference, to withdraw his claim on a quantum meruit and rely solely on his allegation of a promise by defendant to pay, so that no proof of the items will be necessary, an order of reference is proper.” Although the order made in that case was reversed by the court of appeals, 137 N. Y., 616; 51 St. Rep., 167, it is stated in the opinion, as apparently the controlling ground for reversal, that defendant did not state that the trial would require “ more than the brief examination of a single witness, who may have sold and delivered the goods to him. It is evident that the real controversy between the parties relates to the defendant’s counterclaim, which is for attorney’s services and disbursements in four different suits in the supreme court and justice’s court, none of which constitutes a long account of such a character as to authorize a reference.”

The case of Thayer v. McNaughton, 117 N. Y., 111; 26 St. Rep., 843, differs from the one before us. In the course of the opinion in that case it was said There was no evidence before the court when the order of reference was made, that the statutory conditions existed upon which a compulsory reference could be ordered. There was nothing in the nature of the action or in the pleadings tending to show that the examinations of a long account on either side would become necessary on the trial” The action is for an item of $300 for services rendered as an attorney, and there was nothing shown by the pleadings or the affidavit “ to justify an inference that the trial would involve the examination of a long account.” The case differs quite essentially from the one before us.

In C. B. Keogh Manuf’g Co. v. Moulton, 16 N. Y. Supp., 65; 40 St. Rep., 688 the affidavit did not show how many items of charges, or how long an account was involved.

In Welsh v. Darragh, 52 N. Y., 592, Church, Ch. J., said: “Actions on contract may be referred. This is an action on contract. The character of an action is determined by the complaint. * * * This court will not review the finding below that the action involves the examination of a long account if the facts will warrant such a finding. If the facts show that the examination of a long account may be necessary, and the court below has decided to refer the action, this court will not interfere. It is only when it is palpable that no such account can be involved that an appeal, will lie to this court; ” citing Kain v. Delano, 11 Abb. N. S., 29.

In Williams v. Allen, 2 Hun, 377, it appeared that the defendants only intended to dispute three items of the account; it also appeared that one of these items was made up of a large number of small charges which would have to be proved on the trial, and an order of reference was sustained by this court in the general term held by the first department. It is not apparent from the pleadings, the nature of the action or from any affidavit produced to the court below that the issue will involve the decision of difficult questions of law. Upon the papers before us we think we ought not to disturb the discretion exercised by the circuit when it ordered a reference pursuant to the power conferred upon the court by § 1013 of the Code of Civil Procedure.

Order affirmed, with ten dollars costs and disbursements.

Merwin, J,, concurs; Martin, J., not sitting.  