Stebbins v. Cowles , 37 N.Y. Sup. Ct. 523 ( 1883 )

Smith, P. J.

The action is brought to recover for services as an attorney and counselor at law. The complaint contains a single count alleging such services generally, and the bill of particulars furnished by the plaintiff specifies numerous items, extending through a period of four years, including services rendered in four separate suits. The answer admitted generally that the plaintiff performed services for defendant “ during the time and as stated in the complaint,” but with that exception denied the complaint and alleged payment, and that the services were performed negligently.

The plaintiff having moved for a reference, the defendant admitted that the items of plaintiff’s bill of particulars were correctly stated as to their number and date and character of service, but not as to their value, and therefore the motion was denied. Subsequently the cause came on for trial before the county court, and the plaintiff having proceeded in part with his proof and offered evidence as to value which was objected to by the defendant, the court decided that all the items of the account, their nature and value must be proved, and ordered a reference. From that order this appeal is taken.

We think the appeal cannot be maintained. The action was one which the county court had power to refer in its discretion. The numerous items of the account were not so fully and distinctly admitted as to preclude the necessity of giving evidence of their nature as well as their value, as seems to have been demonstrated by the partial trial of the cause. The facts warranted the conclusion of the court below, that the trial involved the examination of a long account. The order being discretionary we cannot review it.

The decisions of one tribunal resting in discretion, are not reviewable by another (Ward agt. Wiles, 24 N. Y., 635; Tanner agt. Marsh, 53 Barb., 438). That rule does not apply to a review by the general term of this court, of the decision of the special term, they being parts of the same court. But the county court being an independent tribunal, this court cannot interfere with the exercise of its discretionary powers.

The learned counsel for the appellant cites cases in which a reference of an attorney’s account has been refused. No case has gone so far as to deny the power to refer in such a case; they all rest upon circumstances of discretion (Martin agt. The Windsor Hotel Company, 10 Hun, 301), or upon the ground that the action did not involve a long account (Felt agt. Tiffany, 11 id., 62).

The appeal should be dismissed, with ten dollars costs and disbursements.

Hardin and Barker, JJ., concurred.

So ordered.