John Weber & Co. v. Hearn (7 A.D. 306, 1896)

Patterson, J.:

This is an appeal from an order directing a compulsory, reference in an action to foreclose a mechanic’s lien. It is suggested on the part of .the appellant that it is not proper to order a reference in an action of this character against the objection of a party, but that question was set at rest by' this court in the ease of Tooker v. Rinaldo (11 Hun, 154), which was an action to foreclose a mechanic’s lien, and in which- an order directing a reference upon .the ground that an examination of a long account was involved, was affirmed by the General Term. While there are issues of fact not relating to an account involved in this action, it is evident from the pleadings that a judgment for the plaintiff on the whole case cannot be rendered without the examination of a long and complicated account. The plaintiff sues to recover for work,, labor and services rendered and materials furnished under a contract^ and also for extra work, and the defendant denies that the work, labor and services.were performed and that the materials supplied were of the value stated in the complaint, or that the extra work and materials furnished were of the value as stated in the complaint. The amount claimed by the plaintiff under both these heads is something like $22,000, the resulting balance after crediting payments made by the defendant. The account which appeared before the court on this motion extends over no less than eight printed pages of the appeal book, and the form of the defendant’s answer is such as to require an examination of this account before any result could be arrived at upon which to base a judgment- for the plaintiff on that branch of the case. There is nothing in the case of Feeter v. Arkenburgh (147 N. Y. 237) nor in any of the cases cited by the appellant affecting the question, as it is presented here. The items are not such as appear in attorneys’ bills, where a great number of charges are made for separate services in one ¡^articular subject of employment, but under this complaint the value of a great amount of different materials must be proven, and each item is to be investigated almost-as if.it were the subject of a separate action, and matr ters of payment and allowance are also involved.

An inspection of the account before the court on this motion demonstrates that the doing of the work and labor, and the furnishing of the -materials extended over a long period of time, and the affidavits show that the examination and dissection of a long account will be absolutely necessary to the plaintiff’s establishment of its cause of action. This is not a case in which the defendant asks a trial by jury of his counterclaim for damages, for he concedes the issues should be tried by the court.

The order appealed from must be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Barrett, O’Brien and Ingraham, JJ., concurred.

Barrett, J.:

I place my concurrence upon the ground that it does not appear that the contract referred to in the complaint contained a provision to pay an agreed sum for specified work. On the contrary, the complaint states that the services rendered and materials furnished “ were of. the value of’ $60,090.34, part of which, to wit, $48,346, was pursuant to a written contract, * * * and the balance of which, to wit, $11,744.34, was pursuant to further and additional directions, instructions and orders given * * * during the progress of the said'work.” A payment of $38,000 is admitted, leaving a general balance of $22,090.34. It thus impliedly appears that the work, labor and services rendered under the contract are as much the subject of a quamtum 'meruit as those rendered under the claim of extra work. If - the contract. had specified a fixed .sum to-he paid for the particular job the case would not be referable compulsorily merely, because the contract issues were .supplemented by other issues relating to numerous items of extra work. The defendant in that ease could not he deprived of his right to a trial by the court in the ordinary way with regard to the contract issues, because the trial of the incidental issues as to extra work happened to involve the examination of.a long account. In such a case the court should, as was said in Blake v. Harrigan (38 N. Y. St. Repr. 26), try the main issues upon the contract, and then send the long account of extra work tó a referee, if necessary.

Upon the record as here presented I agree that the presumption is in favor of the order appealed from.. It fairly appears that the trial of all. the issues raised by -the complaint -and answer will necessarily involve tl-ie examination of á long account.

The order should, for these reasons, as- well as those assigned by Mr. Justice Patterson, be affirmed, with costs.

Order affirmed, with ten dollars costs and disbursements.