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same with the evidence and his opinion thereon, and a report having been made by him and filed on
, 19 , and exceptions to said report having been filed by the said infant defendant on , 19 , and the plaintiffs having given notice of trial at Special Term in the ordinary form on , 19, and the case having been duly reached in its ordinary course on the calendar of the Special Term of this court, and the court having considered the report of the said R. F. as referee with the evidence taken before him, and the exceptions filed by the said infant defendant, and having heard the testimony of witnesses called and examined by the plaintiff, and the court having after due deliberation thereafter duly filed its decision, confirming said report and stating findings of fact and conclusions of law, and directing judgment to the effect hereinafter stated, and the costs of the
having been duly adjusted at dollars; Now, on motion of A. T., attorney for plaintiff:
IT IS ADJUDGED (etc., as in other Forms].
FORM No. 1815. Judgment (final) where an issue of fact as to one defendant has been tried
by a referee, and a reference had on default of other defendants, and
exceptions have been taken to the report. [Title of court and action.]
This cause having been regularly brought on for hearing, upon the pleadings and proceedings therein, including the report of R. F., the referee to whom the issues of fact joined by the answer of W. X. were referred, to hear and determine, which report was filed the day of , 19 ; and, also [the report of S. F.], to whorn it was referred [to compute the amount due to the plaintiff upon the bond and mortgage mentioned in the complaint — and in foreclosure, if there are infant defendants having answered generally, or absentee defendants, add: and to take proof of the facts and circumstances stated in the complaint, and examine the plaintiff or his agent on oath as to any payments made, and which ought to be credited on said bond and mortgage], which report was filed on the day of 19 [and also upon the exceptions to said report, made and filed thereto on behalf of the defendant W. X.- recite other proceedings. such as service and default of those not appearing, lis pendens, etc., as in other cases), and after hearing counsel for the respective parties on said report of , and exceptions thereto, and due deliberation being had, and the court having
directed judgment as hereafter stated, and the costs of the having been duly adjusted at the sum of dollars; Now, on motion of A. T., attorney for the plaintiff:
It is ORDERED AND ADJUDGED, that the said report of the said referee be, and the same hereby is, in all things, confirmed (and that the said exceptions be and the same are hereby overruled and disallowed — or, where any exceptions are sustained, say: that the first of said exceptions be, and the same hereby is overruled, and the second exception is allowed and that said report is modified accordingly by setting aside the finding of said referee, and disallowing — etc., stating the modification - and that said report, as so modified, hereby is confirmed).
And it is further ADJUDGED (etc., as in Forms 1857, etc.).
PROCEEDINGS IN CASE OF TRIAL BY REFEREE. [ Forms more commonly used in connection with trial by jury or by court are not repeated here, although such as may be used on trial by referee.)
I. ORDERING REFERENCE TO HEAR AND DETERMINE,
FORJS. I. COMPULSORY REFERENCE. 1825-1829. Statements suitable to in1816. Affidavit to move for reference,
sert in foregoing Form.
1830. Order referring the cause, with etc. 1817. Notice (or order to show cause)
out motion. thereon. 1818. Stipulation admitting facts, to
II, REFERENCE BY CONSENT. obviate reference.
1831. Stipulation to refer cause, etc. 1819. Affidavit to oppose motion.
(Short Form.) 1820-1822. Statements suitable to in- 1832-1835. Statements suitable to insert in foregoing Form.
sert in foregoing Form. 1823. Stipulation agreeing on nom- 1836. Order referring cause, by conination of referee.
sent. 1924. Order on motion referring cause
to hear and determine.
1. COMPULSORY REFERENCE.
FORM No. 1816. Affidavit to move for reference of an action involving a long account. 98 [Title of court and action.] [Venue.]
A. B., being duly sworn, says:
I. That he is the plaintiff [or, defendant] in the above entitled action. *
98 No constitutional right of trial by jury is violated. See Malone v. St. Peter, etc., Church, 172 N. Y. 369.
What is a “long account," under the statute, see, generally, Smith 6. London Assur. Corp., 114 App. Div.
99 The affidavit should be made by a party, or excuse be stated in it (Wood r. Crowner, 4 Hill, 548), un
less the truth of its allegations as to an account being involved appears by the pleadings.
II. That said action is brought to recover [here designate nature of cause of action]. III. That issue was joined99a on [or, as of] the day of
, 19 , by the service of [defendant's answer], setting up [here designate the defenses,' e. g. thus:] payment as to part,
868; Sartorious r. Gottlieb, 80 App. Div. 112, 80 N. Y. Supp. 159; Leary r. Albany Brew, Co., 66 App. Div. 407, 72 N. Y. Supp. 657; Importers' Bank v. Werner, 54 App. Div. 435, 66 N. Y. Supp. 996; Fisher v. Haines, 62 App. Div. 66, 70 X. Y. Supp. 787; Clinch v. Henck, 49 App. Div. 183, 62 N. Y. Supp. 1058; Spencer. Simis, 137 N. Y. 616; Un termeyer r'. Bainhauer, 105 N. Y. 521; Hilbard v. Comm. All. Ins. Co., 4 Misc. 4.22, 24 N. Y. Supp. 332; aff'd, 141 X. 1. 559. Reference may be or dered upon a counterclaim, if plaintiff's cause of action is admitted. Kindberg r. Chapman, 115 App. Div. 154.
A reference to assess the damages, as a substitute for specific performance, cannot be ordered if no long account is involved. Stand. Fashion Co. t'. Siegel-Cooper Co., 44 App. Div. 121, 60 V. Y. Supp. 739.
This Form has been sustained in Place r'. Chesebrough, 63 N. Y. 315, and numerous other cases. But where the pleadings disclose an issue not apparently involving an account, a general allegation that the issue "will require the examination of a long account involving very numerous items of charges and credits amount. ing to many thousand dollars and extending over several years," is no evidence that an account is so directly involved on either side, as the immediate object of the suit or defense, as to justify a reference. Kain v. Delano, 11 Abb. Pr. (N. S.) 29. In case, therefore, the pleadings do not show or suggest an account, state the facts here in more detail, showing how the account is involved. Crawford r. Canary, 28 App. Div. 135, 50 N. Y. Supp. 874. For notwith standing an undenied general affida vit, the court may find that the pleadings do not involve a long account.
'ntermeyer v. Beinhauer, 105 N. Y. 521.
In actions by an attorney to re
cover for services it is held that the gross charge in any one action, although the service is permissible of exhaustive itemization, is essentially a single charge, and does not involve a " long account” within the statute. Unless exceptional circumstances are made to appear, such an action by an attorney will not be referred, although the services have been rendered in many actions and under different retainers. See Prentice v. Huff, 98 App. Div. 111, 90 N. Y. Supp. 780; Moyer v. Village of Nelliston, 110 App. Div. 602, 97 N. Y. Supp. 171; Cantine 0. Russell, 168 N. Y. 484. Compare Lewis r. Snook, 88 App. Div. 343, 84 N. Y. Supp. 634, 14 Anno. Cas. 56.
The action must be framed on contract to be referable. Starin t. Fonda, 107 App. Div. 539, 95 N. Y. 379; Price l'. Parker, 44 Misc. 582, 90 V. Y. Supp. 98; Fiero v. Paulding, 6 N. Y. Supp. 122, 25 St. Rep. 156. And the account must be directly involved, rather than merely collateral upon a question of damage. Bentz i'. Carleton, etc., Co., 114 App. Div. 865 ; Smith 1. London Assur. Corp., 114 App. Div. 868.
990 Joinder of issue should be stated. Jansen 1. Tappen, 3 Cow. 34. If the place of trial has been changed from that named in the complaint, it is useful to state it; but this is not essential. Feeter v. Ilarter, 7 Cow. 478.
1 In an action at laro the fact that the defendant denies the existence of the contract alleged, under which the long account arises, is no ground for denying the motion to refer. Boisnot v. Wilson, 95 App. Div. 489, 88 N. Y. Supp. 867. In an equitable action for an accounting, an interlocutory judgment must always be entered prior to the reference. Gibson r. Widman, 106 App. Div. 388, 94 N. Y. Supp. 593. And if the right to the accounting be disputed, that issue must be first disposed of. Diehl v.
and a counter-claim rising out of several items of services alleged to have been rendered by him to the plaintiff [or, denying the quality and value of the several items of services and materials charged for in said account.?]
IV. That the trial of the aforesaid issue will require the examination of a long account on the side of the plaintiff (or, defendant - or, both parties], consisting of at least items of charges and [credits] of the aforesaid [goods and services] of various dates.
[If order to show cause is asked, state as on p. 1172.] [Jurat.]
[Signature.] FORM No. 1817. Notice (or order to show cause) to move for reference. [Title and recitals (moving the court), as in Form 815 or 818, stating relief thus:] referring this action to a referee [or, one or more referees — or, to R. F., Esq., of
],5 to hear and determine, and for such other relief as may be just (with costs of this motion to abide the event]. [Date.]
[Signature and office address of], [Address] To
FORM No. 1818.
It is hereby admitted, for all the purposes of this action only, that [state character of admission, as :] that the plaintiff rendered the services set forth in the schedule annexed to the complaint herein, [excepting items numbered in said schedule), but the defendant does not admit the alleged value of the said services or of any item thereof. [Date.]
[Signature of attorney.] Dreyer, 84 App. Div. 247, 82 N. Y. require examination of a long account Supp. 770; Jordan v. Underhill, 71 (see Whitaker 0. Desfosse, 7 Bosw. App. Div. 559, 76 N. Y. Supp. 95. 678); although the order may be Otherwise the same rules as to refer granted upon an affidavit in which ring apply in both species of actions. such facts are not stated, if the fact Blake v. Harrigan, 14 N. Y. Supp. that the account is involved appears 663, 20 Civ. Pro. Rep. 424; Nat. Shoe, expressly by the pleadings. Dean . etc., Bank v. Baker, 148 N. Y. 581. Empire State Mut. Ins. Co., 9 How.
2 Welsh v. Darragh, 52 N. Y. 590. Pr. 69.
3 A mere possibility that a long ac. 5 It is not essential that he reside count will be involved, is not enough. in the county. O'Brien v. Catskill Thayer v. McNaughton, 117 N. Y. ill. Mountain R. R. Co., 32 Hun, 636.
4 It is better in doubtful cases to 6 In Hoff v. Reid & Co., 110 App: state thus the facts which sustain the Div. 95, such a stipulation was held general allegation that the issue will to obviate the necessity of a refer