Martin v. Gould. neglected to furnish a bill of particulars on demand, was to make application to the court by motion to preclude such party from giving evidence on the trial, of his demand. If a party desires to prevent the giving of such proof, he should have the question settled before trial (Kellogg v Paine, 8 How. Pr. 329). This practice has been uniformly pursued by the supe rior court of New York, and, so far as I am able to learn, by the supreme court. This is the better practice, as all parties will then know just what facts the evidence will be directed to prove (Dowdney v. Volkening, 37 N. Y. Super. [5 J. & S.] 313; Moore v. Belloni, 42 Id. [10 J. & S.] 184). I think the judge on the trial of this cause committed no error in allowing the plaintiffs to make this proof, without having first furnished the defendant with a bill of particulars. * The judgment appealed from should be affirmed, with costs. MARTIN ET AL. v. GOULD. NEW YORK COURT OF COMMON PLEAS, SPECIAL TERM, MARCH, 1874. § 1013. Reference- When not ordered in action by attorney for professional servicesA compulsory reference cannot be ordered in an action by an attorney torecover for professional services where his bill of particulars consists * See as to bill of particulars and copies of account in general, note on Bill of Particulars, 2 N. Y. Civ. Pro. 240; also cases referred to in Digest to volumes 1 to 10 of these reports, 10 N. Y. Civ. Pro. 337, et seq., and as to questions considered in the opinion above reported, Note on Bill of Particulars, 2 N. Y. Civ. Pro. at p. 247; Williams v. Fay (N. Y. City Ct. Sp. T.), Daily Reg. Aug. 28, 1883. Martin v. Gould. of but three items of charges, notwithstanding one of them includes several items of services in one matter. Where numerous items of services were all directed toward the advancement or consummation of a particular object, for which a gross sum is claimed, and none of them were the subject of a specific charge as matter of independent indebtedness, an independent estimate of the value of appropriate remuneration for such items of services, are available only for the purpose of furnishing secondary or indirect evidence for the gross charge of the entire services. However numerous the facts to be proven, they still in their aggregate consist of but a single item to be arranged in the account. In a case where a compulsory reference may be directed, the ordering of it is discretionary with the court and; where in an action by attorneys for services alleged to have been rendered, many of the services rendered were not within the ordinary scope of an attorney's employment, a reference may properly be denied. (Decided March 3, 1874.) Motion for reference upon the ground that the trial will involve the examination of a long account. The facts appear in the opinion. Augustus F. Smith, for plaintiff and motion. George Owens and John Graham, for defendant, opposed. ROBINSON, J.-In this case, which is an action for work, labor and services performed by plaintiffs as attorneys and counsel, the bill of particulars consists of but three items of charges, and the case is clearly not referable unless the last item (being a gross sum of $75,000) can, for the purpose of this application, be deemed resolvable, as matter of account, into the different items of service detailed in the bill of particulars and on which the subject of the gross charge is based and which would necessarily become the matter of separate inquiry on the trial. It has been determined in this case that the item is not an aggregate charge for separate acts and services which in themselves are matters of Martin v. Gould. distinct estimate or value. A motion has been made in this case for an amendment of the bill of particulars, requiring a statement of the specific value of each service, the plaintiff having on request declined to do so; and this being denied, the general term on appeal affirmed such decision, necessarily regarding the service as continuous and single and constituting an entire item of charge founded upon a gross estimate of the value of all that had been done. This charge, therefore, could not have arisen upon transactions in respect to which there were separate contracts, expressed or implied, such as would arise upon the purchase of distinct bills of goods or on employment in separate matters of service, which would constitute legally distinct items of charge (Ang. on Lim. §148; Secor v. Sturgis, 16 N. Y. 548, and cases cited). To establish this item, the different coming and going, writings of letters, consultations, &c., involved in the charge, were all directed toward the advancement or consummation of a particular object, and all such as are specified, were advisedly directed to that end. None were the subject of a specific charge as matter of independent indebtedness; and, whatever estimate of value or of appropriate remuneration may be attributed to any or either of such items of service, it only furnishes secondary or indirect evidence for the establishment or fixing of that of the gross charge for the entire service. Such being the character of the particulars of evidence to sustain the entire claim, however numerous the facts to be proven they still in their aggregate constitute but a single item to be arranged in the account (Swift v. Wells, 2 How. Pr. 79; Miller v. Hooker, 2 Id. 171; Freeman v. Atlantic Ins. Co., 13 Abb. Pr. 124; Sharp v. Mayor, &c., 18 How. Pr. 213). An examination of the cases referred to by plaintiffs' counsel (Masterton v. Howell, 10 Abb. Pr.118; Thomson v. Seimer, 40 How. Pr. 246) will be seen to hold nothing to the contrary. The ordering of a reference is in discretion; and, while Van Slyck v. Ingersoll. I regard the investigation of the merits of an item as to the value of a lawyer's bill peculiarly appropriate for trial before an intelligent referee and member of the profession, the claim founded on it is upon such detailed matter of service, many of which are not within the ordinary scope of an attorney's employment, I regard the subject as more appropriate for investigation by a jury. Motion denied, with $10 costs to abide the event. VAN SLYCK v. INGERSOLL. NEW YORK COURT OF COMMON PLEAS, SPECIAL TERM, OCTOBER, 1887. § 1013. Reference- When not ordered, because not involving a long account. A compulsory reference will not be ordered on the ground that a long account is involved, in an action brought by an attorney to recover for professional services, where a gross amount is claimed therefor, notwithstanding the bill of particulars shows a large number of items of services performed and the answer is a general denial. Martin v. Gould (ante, p. 45), followed. (Decided October 21, 1887.) Motion by plaintiff for an order directing a reference of the issues in this action for hearing and determination. This action was brought by the plaintiff, an attorney and counselor-at-law, to recover the sum of $47,050, a balance alleged to be due him for professional services rendered the defendant, intermediate December 1, 1886, and March 1, 1887, and for moneys laid out and expended by the plaintiff for and on account of the defendant in and about the performance of such services. Issue was joined 44 Van Slyck v. Ingersoll. on September 10, 1887, by the service of an answer containing substantially a general denial. The affidavit upon which the motion was made, besides reciting these facts, set forth, that the trial of the issues joined in said action will necessarily require the examination of a long account on the part of the plaintiff; that, in pursuance of the retainer of the plaintiff by the defendant, this deponent prepared papers, attended to different legal proceedings in court and elsewhere, attended to different matters relating not only to his litigation with Mr. E. Post and another, as shown in the bill of particulars herein before served upon defendant's attorney, but to the interests involved as between himself and his son James H. Ingersoll and one Seymour, and was engaged with other attorneys and parties representing different interests, and advised the defendant in matters relating to the settlement of the said controversy; examined many legal questions regarding the rights of the defendant; prepared and assisted in the preparation of several contracts and assignments; that the items of plaintiff's service are very numerous, and covered several pages in deponent's book of accounts, and the said bill of particulars consists of numerous items of separate and independent charges and credits; that in addition some of the items are made up of a series of services, each of which might have been the subject of a specific charge, and each of which will have to be separately inquired into and determined on the trial; that the trial will not involve questions of law." Austin E. Pressinger, for plaintiff and motion. John L. N. Iunt, for defendant, opposed. ALLEN, J.-The bill of particulars in this action does not disclose such an account as would justify me in order ing a compulsory reference under section 1013 of the Code VOL. XIII.-4. |