Daly v. City of New York , 134 N.Y.S. 754 ( 1912 )

McLaughlin, J.:

This action is; to recover the sum of $144,440.51, a balance alleged to be due under a contract for work, labor and services performed for the defendant in the removal of snow and ice between December 5, 19Ó8, and February 11, 1909. The complaint alleges that the contract provided that a specified sum should be paid per cubic yard for the snow and ice removed, the price varying somewhat according to the districts of the city; that the plaintiffs, as the snow and ice were removed, were to deliver to the commissioner of street cleaning vouchers setting forth the amount removed, and when the correctness of these vouchers had been certified by inspectors, that then the city would pay to the plaintiffs ninety per cent of the amount stated therein to be the value of the work done, and that immediately after the 15th of April, 1909, if the plaintiffs had completely performed the contract on their part and the same should have been so certified, then the balance would be paid within thirty days thereafter; that the plaintiffs proceeded to carry out the terms of their contract and were so engaged on the 11th of February, 1909, when, without fault on their part, the defendant canceled and abrogated the same and prevented the plaintiffs from further performance; that the plaintiffs, prior to that time, had duly performed all of the terms and conditions of the contract, except such as had been waived, but that the defendant had failed to keep and perform on its part, in that it had neglected and refused to make payments as provided, and had also refused to certify to the correctness of the vouchers or the amount of the work done; that on the 11th of February, 1909, the work performed by the plaintiffs, at the contract prices, amounted in the aggregate to the sum of $165,529.58, of which there had been paid the sum of $21,089.07, leaving a balance due and unpaid of $144,440.51, for which judgment was demanded. The complaint also contained a second cause of action, but, so far as the purposes of this action are concerned, the same has been duly waived. The answer put in issue the material allegations of the complaint. After issue had been joined the defendants moved, on the ground that the trial would require the examination of a long account and not the determination of difficult' questions of law, for the appointment of a referee to hear and determine. The motion was granted and an order entered to this effect, which was subsequently resettled, and the defendant appeals.

It is sought to sustain the order by virtue of the provisions of section 1013 of the Code of Civil Procedure, which provides that the court may, of its own motion, or upon the application of either party without the consent of the other, direct a trial . of the issues of fact by a referee, where the trial will require the examination of a long account on either side, and will not require the decision of difficult questions of law. The papers presented upon the motion did not show that the trial will necessarily involve the examination of a long account within the meaning of the section referred to. According to the contract plaintiffs were to be paid so much per cubic yard for the snow and ice removed. Once that has been ascertained, then the amount to which the plaintiffs are entitled, if anything, is a mere computation. It may very well be that a large number Of witnesses. Will be required to show just- how many yards were removed, but if so, this does not establish that a long account will in any way be involved within the meaning of the statute.

It is not sufficient to uphold a compulsory order of. reference to show there is a possibility that the examination of a long account will he involved, but that fact must be shown with reasonable certainty (Spence v. Simis, 137 N. Y. 616), and until that has been established a party cannot deprive his adversary of a jury trial. (Thayer v. McNaughton, 117 N. Y. 111; Smith v. London Assurance Corporation, 114 App. Div. 868.)

Here, so far as the plaintiffs are concerned, the only issue will be the number of cubic yards removed, and that fact being established, then nothing further will be required except to multiply that by the compensation agreed tó be paid. Obviously, such computation will not involve the -examination of a long account within the meaning of the statute, nor is it apparent that a jury would' have any difficulty in making it.

The order appealed from, therefore, is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and! Dowling, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.