
    CHARLES D. EVANS, Plaintiff and Respondent, v. CHARLES H. KALBFLEISCH et el., Executors, etc., Defendants and Appellants.
    1, Complaint, when it does not contain two Causes op Action—one on Special Contract, and one on a Quantum Meruit.
    1. A complaint which avers that defendant employed plaintiff to perform certain services, and agreed to pay a certain sum therefor, and then sets forth a particular statement of the services performed, and concludes with an averment that the said services were reasonably and fairly worth a certain sum (such sum being the same amount which it had previously been averred the defendant agreed to pay), there being no separate statement of two causes of action, contains but one ccmse of action, and that is a cause of action on the special agreement.
    
    
      Before Barbour, Ch. J., Monell and Freedman, JJ.
    
      Decided Dec. 31, 1873.
    II. Befebehce.
    1. When a compulsory reference of all the issues in am, action, cannot be ordered.
    
    I. When any one of the issues is such that the party has the right to a trial by jury thereon.
    As aU the causes of action stated in the complaint must be referable to authorize the court to compulsorily refer the action, if part or one only is referable, the court cannot refer the others.
    But, Semble—
    If the referable issues should ever require examination, reference can be ordered as to them after the tsial of the other issues.
    
    2. Proof of the examination of a long account being involved, what not sufficimt to authorize a compulsory reference.
    
    
      1. A mere affidavit that the trial will involve the examination of some fifty items of account, is not sufficient.
    III. Application of above principles.
    1. An order ofreference made upon the above complaint, and an affidavit that the trial would involve the examination of some fifty items of account, was reversed.
    
    1. Because the complaint contained but one cause of action, viz., one on a special agreement to pay a certain specified sum, which cause of action was not referable.
    2. Even if it contained two causes of action, one on the special agreement and one on the quantum meruit yet it was not referable, for two reasons :
    1. Because the cause of action on the special agreement was not referable.
    2. Because the proof that the examination of a long account was involved, was insufficient.
    Appeal by defendant from an‘order of reference.
    The complaint alleges that the plaintiff was employed and retained by the defendants’ testator to render, and that he did render, services for'such testator as his attorney and counsel, and in preparing and procuring testimony in a suit expected to be brought, and which afterwards was brought, against such testator.
    
      It further alleges “that the price agreed upon to be paid this plaintiff by said Kalbfleisch, for said services-so to be rendered, was the sum of five thousand dollars, and he, said Kalbfleisch, to pay all incidental disbursements.”
    Then follows a particular statement of the services-performed, and concludes:
    “And that the said services so rendered said Kalbfleisch were reasonably and fairly worth the sum of five thousand dollars.”
    jSTo claim is made for any “incidental disbursements.”
    The defendants admitted the performance of some-services, but alleged that the charges made therefor were excessive.
    They denied the alleged agreement, and averred payment in full by the testator in his lifetime.
    Upon the pleadings and a mere affidavit “that the trial would involve the examination of some fifty items of account,” the court ordered a reference to hear and determine the issues against the objection of the defendants.
    The defendants appealed.
    
      Edgar M. Cullen, attorney, and of counsel for appellants, urged.
    
      I. The action, it is true, is upon contract for the payment of a specified sum of money—five thousand dollars —no claim being made whatever for any item of disbursements. This special contract is denied by the defendants, and this raises the issue to be determined. The right of parties to a jury trial in cases on contract, where the examination of a long account is not involved, is just as absolute as in cases of -tort. And it is difficult to imagine a case in which the right of a jury trial on the existence of a specific contract is more palpable than the case at bar. The plaintiff s affidavit alleges the trial will involve the examination of a long account; "but this is specifically denied "by defendant’s affidavit. And the question is to be determined on the pleadings not on the affidavits (Kean v. Deland, 11 Abb. 34).
    The court must see, from the pleadings and affidavits, that a long account must, necessarily, be examined (Wheeler v. Falconer, 7 Robertson, 48.)
    II. It is submitted that, even were this action on a ■quantum, meruit, it would not be a proper case for a reference. It does not involve an account. In Haught v. Holcomb (16 Howard, 173), Gould, Justice, says: The client has a right to have the controversy between him and his attorney, as to the value of the latter’’ s services, settled by a jury.
    
      Charles S. Gage, attorney, and Charles I). Moans in person, for respondent, urged:
    I. The court has a right to compel a reference, where the trial of an issue of fact shall require the examination of a long account on either side, in which case the referee may be directed to decide the whole issue (§ 271 of Code of Procedure, subdivision 1; Atocha v. Garsia, 15 Abb. 303 ; Mills v. Thursby, 11 How. Pr. 113.)
    II. The trial of all the issues in this action will necessarily involve the examination of a long account, because
    A. A long account is not necessarily a debit and credit account between the parties, but on the contrary items of work done, or even damage sustained by a party to the action, consisting of a great number of items, would constitute such account.
    In fact the above section of the Code mentions an account on either side.
    
    Items of damage or loss sustained by fire by assured on an action under policy have been held to involve ex.amination of long account (see Samble v. Insurance Co., 1 Hall, 560; Batcheler v. Albany City Insurance Co., 6 
      Abbott, N. S. 240; Masterson v. Hurell, 10 Abb. 118 Atocha v. Garsia, 15 Abb. 303 ; Hatch v. Wolff, 30 How. 65 ; 1. Abb. N. S. 77).
    B. The pleadings and affidavit on part of plaintiff on which motion is founded, show conclusively that there were some fifty consultations, and that the plaintiff on many times and occasions procured various items of testimony, and introduced him to the witnesses.
    And the fifty consultations are alleged in addition to any contract, and compensation is asked as to that on the quantum meruit.
    
    0. If the plaintiff fails to establish the contract alleged, viz., that the defendant agreed to pay $5,000 for his services, all these items under both counts of the complaint will have to be proved, to enable plaintiff to recover on a quantum meruit.
    
    And if plaintiff succeeds in proving such alleged contract, plaintiff will still have to prove that he performed all the services as alleged, before he would be entitled to recover on or enforce the same. It is a part of the most important issue of the pleadings.
    The answer denies the amount, value, and duration of such services.
    III. Where courts have refused to refer in consequence of there being collateral issues to be tried, itwasa matter purely in their discretion, because the court by section 271 may refer the whole issue in the action where an issue only requires an examination of such an account (§ 271, Code; see all the cases noted).
    IV. There is no collateral issue to be tried first or at any time in this action.
    V. The reference will be ordered where it appears that the trial of any one of the issues will involve examination of long account, although the determination of some other issue may render it unnecessary to try the-first-named issue at all (Batcheler v. Insurance Co., 6 Abb. N. S. 240, Superior Court, General Term; Mills v. 
      Thursby, 11 How. 113; Lewis v. Insurance Co., 15 Abb. 303, note).
    VI. If there is any evidence before the court below that the examination of a long account will be required, and if uncontradicted, or if there is a conflict, then determination of court below must be held conclusive and final (Batcheler v. Insurance, ante).
    
    VII. Whether the who]e of the issue shall be referred or the taking of the account merely, or whether the account shall be taken before the trial of other issues or after, are in the discretion of the court at a special or a trial term (Ibid; Holmes v. Bennett, 28 How. P. R. 289). .
    VIII. This order is therefore not appealable (Dean v. Empire State Insurance Company, 9 How. P. R. 69 ; Smith v. Dodd, 3 E. D. Smith, 348, 1 C. R. N. S., 334; Hatch v. Wolff, ante; Bryan n. Brennan, 7 How. 359 ; Ubsdell v. Root, 7 Hill, 173 ; Kennedy v. Hilton, 1 Hilton, 546).
   By the Court.—Monell, J.

I am satisfied there is but one cause of action alleged in the complaint, namely, an agreement to pay five thousand dollars. After alleging the employment and performance of the services, it is averred that the price “ agreed upo,n ” by the defendants’ testator for such services, “so to be rendered,” was the sum of five thousand dollars. The subsequent allegation, that the services so rendered were reasonably worth the sum of five thousand dollars, is not a statement of another and different cause of action.

A plaintiff may unite a cause of action upon a special contract, with á cause of action arising upon what was formerly denominated a quantum meruit. But they must be separately stated (Code, § 167), and must each contain a statement of facts sufficient to constitute the alleged separate cause of action.

In the complaint in this action there is no such compliance with the provision of law referred to. The alleged quantum meruit is but a mere continuation of the preceding averments appertaining to the special contract, and is not in any proper sense the allegation,, of a separate and different cause of action. Taken by itself, as it must be, it does not contain facts sufficient to constitute a cause of action ; and it must, therefore, to be available at all, have relation to the preceding matter.

This, I think, is the correct construction of the pleading. It contains a statement of facts constituting a cause of action arising upon a special contract, and not of facts sufficient to constitute any other or different cause of action.

Such an action the court has not the power to refer.

The trial would not require the examination of a long account. x

Proof of the special contract would authorize a recovery, although proof of performance by the plaintiff of the services rendered plight be necessary.

In this view the order of reference was improperly granted.

But assuming, as was doubtless assumed by the learned judge at Special Term, that the complaint contains a statement of facts sufficient to constitute a cause of action upon a quantum meruit, as well as upon the special contract, is the case then referable ?

Recent adjudications by the court of last resort have very much disturbed, if they have not reversed, many decisions of this and other courts, sustaining the power of the court to make compulsory references in certain cases. In Whitaker v. Desfosse (7 Bosw. 678), this court held that if any of the issues required the examination of a long account, the action was referable. The same view was substantially held'in Goodyear v. Brocks (4 Robt. 682), and was affirmed in Batchelor v. The Albany City Insurance Co. (1 Sweeny, 346), where the cases are carefully collected and reviewed.

The principle affirmed in those cases was to the effect that if any one of the issues made by the complaint or answer would, standing by itself, have been referable, then the court had power to refer all the issues; in other words, refer the whole action, notwithstanding some of the other issues would not, .standing by themselves, have been referable.

But in the recent case of Townsend v. Hendricks (40 How. Pr. R. 143), the Court of Appeals have affirmed, I think, a different rule, and have denied in effect the power of the court to refer any action where any of the issues were such that the party had the right of trial by a jury. In that case the complaint alleged a cause of action in tori, and the defence was in part a counterclaim, which by itself would have been referable. But the court held that a party could not be deprived of the right of trial by jury in any of the cases when such right is preserved by the constitution.

The action in that case was not upon contract, but was for a tort, and the court recognizing it as among those in which a “trial by jury has been heretofore used,” has declared that the court could not refer it, notwithstanding the counter-claim, which was legitimately set up, would otherwise have been referable..

It may be that the court did not intend to go any farther than the facts in that case required, and only to hold that if the plaintiff’s cause of action was among those which were heretofore triable by jury, neither of the parties to the action could be deprived of such right, although other issues in the case might otherwise have made the whole action referable.

But it seems to me to follow, necessarily, that where there are several consistent causes of action united in one complaint, some of which the parties have a right to be tried by a jury, and others of which may be referable, the court cannot make a general reference of the action against the consent of the parties. If it was otherwise, a plaintiff, by merely inserting an additional but referable cause of action in his complaint, could always deprive his adversary of trial by jury in any case of contract, which by itself would be a violation of a constitutional right.

The principle, therefore, to be deduced from the decision referred to is that all the causes of actiou stated in the complaint must be referable. If part or one only is referable, the court cannot refer the others, but as was said in Townsend v. Hendricks (supra), if such referable issues should ever require examination, a reference can be ordered as to them after the trial of the other issues.

In the later case of Kain v. Delano (11 Abb. N. S. 29), the power to refer is restricted, even in actions arising on contract, to cases where the court can see,, from the proofs before it, that the examination of a long-account will be required. In that case there was an affidavit that the trial would require the examination of a long account, involving very numerous items of charges and credits amounting to many thousand dollars, and extending over several years. This proof, the court held, was not sufficient to authorize a reference.

Applying the force of that decision to the case under consideration, it would dispose of the latter upon the same ground. The proofs before the Special Term were wholly insufficient to enable the court to determine whether the trial would require the examination of a long account in any aspect of the case. There is nothing in the complaint or answer, from which it can be seen that any account will require examination; and the affidavit, which states merely that the trial will involve the examination of some fifty items of account, upon the authority of Kain v. Delano (supra), is not enough.

Upon all of these grounds stated, namely : first, that there is hut one cause of action; second, assuming there are two, one is not referable, and third, the insufficiency of the proof that the trial will require the examination of a long account; I am of opinion the reference in this case was improperly ordered.

The order should he reversed, with costs.

Barbour, Oh. J., and Freedman, J., concurred.  