Cassidy v. McFarland

• Decision Date: 03 October 1893
• Citation: 34 N.E. 893,139 N.Y. 201
• Parties: CASSIDY et al. v. McFARLAND et al.
• Court: New York Court of Appeals Court of Appeals

139 N.Y. 201

34 N.E. 893

CASSIDY et al.

v.McFARLAND et al.

Court of Appeals of New York.

Oct. 3, 1893.

Appeal from common pleas of New York city and county, general term.

Action by Patrick Cassidy and others against Joseph McFarland, Frederick Wood, and others to foreclose a mechanic's lien. An order of the general term (20 N. Y. Supp. 875) affirming an order of reference was affirmed on the appeal of defendants McFarland and Wood, (33 N. E. Rep. 744, mem.,) and afterwards a reargument was granted, (33 N. E. Rep. 1083, mem.) Defendant Wood also appeals from an order of the general term (21 N. Y. Supp. 585) affirming an order denying his motion for the retaxation of costs. The cause now comes on to be heard on the reargument, and on the appeal from the order denying the motion to retax costs. Reversed.

George A. Stearns, for appellants.

Thomas C. Ennever, for respondents.

MAYNARD, J.

This action was brought to foreclose a mechanic's lien for plumbing and gas-fitting materials furnished the defendants Gorman & Sylvander, who were subcontractors to do the plumbing in the course of the erection of three buildings in New York city for the defendant Frederick Wood, who was the contractor for the erection of the buildings for the defendant Joseph McFarland, the owner of the premises. McFarland was to pay Wood $67,158 for the erection and completion of the three buildings, and Wood was to pay Gorman & Sylvander $6,195 for the plumbing. The complaint alleges that the amount and value of the materials furnished by the plaintiffs is $4,382, no part of which has been paid, except $375; that there is more than $4,007 due and unpaid on the contract between McFarland and Wood, and more than that sum due and unpaid on the contract between Wood and Gorman & Sylvander. Gorman & Sylvander did not plead. Two of the other defendants, Orlofski and Cornet, filed liens, and sought to foreclose them in the action, both against Wood, the contractor,-one for painting work and material to the amount of $710, and the other for sand furnished to the amount of $900. All of the defendants, separately answering, deny that they have any knowledge or information sufficient to form a belief as to whether the plaintiffs furnished the materials, and whether they were of the amount and value alleged. McFarland denies that there is anything due Wood on his contract, and Wood denies that he owes Gorman & Sylvander any sum on their contract. There are various other defenses, but they are not material to be considered here. The plaintiffs did not notice the cause for trial, but it was noticed by the defendants McFarland and Wood, and placed upon the calendar, and then referred by the court, upon its own motion, against the objection of the defendants, upon the ground that it appears from the pleadings that the trial of the action would involve the examination of a long account, and that no difficult questions of law were involved. The general term affirmed the order of reference, and the defendant has brought this appeal.

The order cannot be affirmed, we think, without disregarding repeated decisions of this court. In Kain v. Delano, 11 Abb. Pr. (N. S.) 29, it was held that a compulsory reference could not be ordered unless it affirmatively appeared that the examination of a long account was necessarily involved upon the trial. In Thayer v. McNaughton, 117 N. Y. 111, 22 N. E. Rep. 562, it was held that it is not enough to justify a compulsory reference that the case may, by possibility, involve the examination of a long account; that enough must be alleged or shown to justify the inference that such will be the course of the trial; and that the same rule applies to equitable as to legal actions. In Spence v. Simis, 137 N. Y. 616, 33 N. E. Rep. 554, it was held that a compulsory reference could not be ordered unless it appeared with reasonable certainty that the hearing of the case will require the examination of a long account. It is not necessary that this proof shall be made by affidavit. It is sufficient if the fact clearly appears from the verified pleadings that the examination of a long account will be involved in the trial of the issues. The referable quality of the action must also be determined from the complaint. Welsh v. Darragh, 52 N. Y. 590;Untermyer v. Beihauer, 105 N. Y. 521, 11 N. E. Rep. 847. The general term sustained the order because the plaintiff's lien was for plumbing material furnished for the equipment of three buildings, and, as they would be required to make proof of the quantity and value, the conclusion could be drawn that a long account was necessarily involved. We do not think that such an inference is permissible. For aught that appears, the materials were all furnished at one time, and constituted but one bill. Chief Justice Bronson denied a reference in Swift v. Wells, 2 How. Pr. 79, on the ground that one bill of goods, containing 50 different items, delivered at the same time, was but one item; and this court, in the recent case of Spence v. Simis, supra, held that a bill for coal and wood furnished upon 15 different occasions during a period of three years did not necessarily make a long account, within the meaning of the statute. The utmost that could properly be inferred is that there might be a separate bill for each building, and thus that there might be three items of plaintiffs' claim. But the plaintiffs allege that the defendants Gorman & Sylvander agreed to pay for the materials furnished a specified sum in gross; and if this allegationis sustained by the proof, as it may be, no investigation would be necessary in regard to the value of the several items, however numerous. It is also apparent from the condition of the pleadings that it is not probable that there will be any actual controversy as to the materials furnished, or their value. The defendants Gorman & Sylvander, who purchased them, make no defense, and so admit the averments of the complaint, for the purposes of this action. They are, presumably, the only parties, other than the plaintiffs, who have any personal knowledge upon the...