Lustgarten v. Harlam

Plaintiff made a motion for a compulsory reference, upon the ground that the trial of the issues would involve the examination of a long account and that no difficult or intricate question of law would arise on the trial. This motion was granted, and, from the order granting the same, defendant appeals. The complaint sets forth that plaintiff, as a physician, rendered services to defendant’s wife between May 18, 1906, and March 1, 1907, and that for said services defendant promised and agreed to pay to plaintiff the sum of $1,455, which was, according to the complaint, the reasonable value of such services; that defendant has paid $750 on account; that between October 12, 1906, and February 27, 1907, plaintiff rendered further and extra services by giving advice over the telephone, which extra services were worth $300, making a total claim of $1,005, for which plaintiff demands judgment. Annexed to the complaint is a schedule setting forth 1 alleged visit at $5, 101 alleged visits at $10 each, 26 alleged visits at $15 each, and 2 alleged -visits at $25 each, with the date of each alleged visit, making up an alleged claim of $1,455, upon which $750 are acknowledged to have been paid. Ko schedule is given of the alleged telephone calls, for which plaintiff claims $300, in addition to the balance of $705 alleged to be due for the visits, making, as we have seen, a total claim of $1,005. The answer admits the hiring of plaintiff by defendant, but denies knowledge or information sufficient to form a belief as to the number of visits. It further denies that defendant agreed to pay to plaintiff the sum of $1,455 for the services rendered, or that such sum was the reasonable value of such services; and it also denies all of plaintiff’s allegations concerning the alleged telephone calls and their alleged value. In his affidavit op*608posing the motion for a reference, defendant swears that whatever services were rendered by plaintiff to defendant’s wife were rendered while she was suffering from one complaint, and that the said services did not cover any separate illness of defendant’s wife, which seems to be a reasonable inference from the allegation of the complaint that the services were rendered to defendant’s wife for a malady under which she labored. It seems to us that the proof as to the number of visits and telephone calls would be merely formal, and that the alleged long account is not the immediate object of the action and is not directly, but only collaterally, involved. The main issue is: Did defendant promise to pay plaintiff the sum alleged, and was that sum the reasonable value of the visits and telephone calls ? It would take but a short time to testify as to the number and dates of. the alleged visits and telephone calls, and there is nothing in the papers in this case which would indicate that an average jury could not fully bear in mind and appreciate the evidence relating to the nature and value of the alleged services claimed to have been rendered by plaintiff to defendant. Under the conditions above indicated it was error to order a reference against the will of defendant. Camp v. Ingersoll, 86 N. Y. 433-436; Aronin v. Philadelphia Casualty Co., 54 Misc. Rep. 630; Spence v. Simis, 137 N. Y. 616-618; Hedges v. Methodist Protestant Church, 23 App. Div. 347-348; Feeter v. Arkenburgh, 147 N. Y. 237; Prentice v. Huff, 98 App. Div. 111-114; Randall v. Sherman, 131 N. Y. 669; Cantine v. Russell, 168 id. 484.

The order is reversed with ten dollars costs and disbursements, and the motion for a reference is denied, with ten dollars costs.

Present: Gildebsleeve, Gut and Beuce, JJ.

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