Dittenhoeffer v. Lewis , 5 Daly 72 ( 1874 )

Daly, Chief Justice.

The stipulation filed by the defendant admits that all the services mentioned in the bill of particulars were rendered at the times therein stated, except two items in the bill (of $500 and $375), to which the defense of the statute of limitations is set up. This disposes of the question of the plaintiff’s right to a reference. The two items excepted relate each to distinct subject-matters, and do not in themselves constitute an account. They are not even in the bill separated into items, and all that the plaintiff will have to show is what he did under these two heads, and whether what he did in one case was worth $500 and in the other $375. All the other services being admitted, he will merely have to prove their value, which he may do by proving the value of each item or the value of the whole collectively. An account is not involved, because a number of items or distinct facts will have to be proved (Turner v. Taylor, 2 Daly, 282 ; Sharp v. The Mayor &c. of New York, 18 How. Pr. R. 213 ; Thomas v. Reab, 6 Wend. 503; McCullough v. Brodie, 13 How. Pr. 346), and that is all that there is in this case to constitute an account. The •order directing a reference should he reversed.

Labbemobe and Loew, JJ., concurred.

Order reversed.