Flanders v. Odell , 16 Abb. Pr. 247 ( 1874 )

By the Court.^*—

Tapped", J.

—The action is upon an attorney’s bill; the trial does not necessarily involve the examination of a long account between the parties, inasmuch as the defendant does not contest the items - of expenditure charged against him by the plaintiff.

The defenses, that the services are not worth the sum named ór claimed, and that the defendant did not make the contract to pay the plaintiff a sum certain, as set forth in the complaint, and that the defendant has fully paid the plaintiff, are questions of fact, the decision of which will chiefly govern the final result.

In an action of this nature, while it may be proper to send the case for trial to an attorney as referee, in many instances, yet it may also be proper, in some instances, not to compel the defendant to submit his defense to such a tribunal.

And, for these reasons, as well as because the examination of along account is not necessarily involved, the reference should not be ordered.

In Evans v. Kalbfleisch (16 Abb. Pr. N. S., 14),. where the plaintiff (an attorney) averred a special contract, and also a quantum meruit, the superior court, at general term, reversed the order of reference, and the grounds, reasoning, and authorities cited, will be found decisive in this case.

Order of special term, directing reference, reversed, with ten dollars costs, to abide the event.

* Present, Babnabd, P. J., Tappeit and Donohue, ,TJ,