and immaterial under his pleading. See Advance Sheets Am. Dig. No. 162, p. 494, April, 1901; Lally v. Lumber Co. (Minn.) 85 N. W. 157; Poindexter v. Paper Co. (1900) 84 Mo. App. 565. As to the exceptions taken by the defendant upon the trial, we think many of them well founded, and, without other good grounds for our decision, we should feel obliged to pass upon them favorable to the appellant. But the case abounding with sufficient proof, under the alternative proposition of contributory negligence of plaintiff himself or fault of a fellow servant, there is no necessity for pursuing inquiry concerning exceptions taken below, other than the one enabling review of the facts. Judgment and order appealed from should be reversed, and a new trial ordered, with costs to the appellant to abide the event. Judgment and order reversed, and new trial ordered, with costs to appellant to abide event. CONLAN and O'DWYER, JJ., concur in the result. The negligence complained of, if it existed, was that of a co-workman, for which the master is not liable. (36 Misc. Rep. 110.) BREIN V. LIGHT. (City Court of New York, General Term. October, 1901.) RECEIVERS RECOVERY OF ASSETS. Where a receiver claims certain property as belonging to the judgment debtor in supplementary proceedings, but in possession of a person not a party thereto, he can recover it only in an action therefor. Appeal from special term. Action by Charles Brein against Max Light. Judgment for plaintiff. Mark Jacobs was appointed receiver. From an order requiring him to repay Abraham Eisenbud within five days of service of the order $158, which he had received from Eisenbud, the receiver appeals. Affirmed. Argued before CONLAN, McCARTHY, and SCHUCHMAN, JJ. Leon Sanders (J. Brownson Ker, of counsel), for appellant. McCARTHÝ, J. This is an appeal by Mark Jacobs, as receiver, from an order granting a motion made by Eisenbud, the respondent herein, compelling Mark Jacobs, as receiver in supplementary proceedings, to pay back to him the sum of $158, which was claimed. by said Eisenbud to have been forced from him by said Jacobs by threats and duress, as appears by the affidavits herein; said Eisenbud also claiming to be the owner of the property which the receiver so attempted to take possession of. Johnson, C. J., in Rodman v. Henry, 17 N. Y. 482, says: "Upon proceedings supplementary to execution the judge has power to order any property of the judgment debtor in the hands of him and 106 New York State Reporter self or any other person to be applied towards the satisfaction of the judgment. But, if it appear that a person alleged to have property of the judgment debtor claims an interest in the property adverse to him, such interest is only recoverable in an action against such person by the receiver. It is not enough, therefore, that property is found in the hands of the judgment debtor. It must also appear to be his property." These sections preclude the idea that a third person who claims the property as his own is to be placed by virtue of these proceedings in a position where his rights can only be asserted in a suit in which he is the plaintiff. The obvious purpose of the series of provisions is to give the creditor an immediate and summary remedy against the debtor's property, but not to permit the rights of third persons to be brought in litigation except in a regular way by suit. If Eisenbud made no claim to the property in question, then an order for the delivery of the property by the defendant to the plaintiff would have been a matter of course; but, if Eisenbud claimed the property, the only way the matter could be settled would have been by the receiver's bringing action against him. The case of Gomprecht v. Scott, 27 Misc. Rep. 192, 57 N. Y. Supp. 799, does not apply, inasmuch as in that case Minna Scott, who claimed to own the property, conferred jurisdiction on the court to determine her right and interest, as held by Leventritt, J., in proceedings like the one at bar. In the case at bar the third party, Eisenbud, did not consent to a determination of his rights, nor did he appear to be heard in regard to the same. Therefore he was a stranger to the proceeding herein, and his interest or rights. could not be determined, unless by an action brought by the receiver against him. Where a third party claims the property alleged to belong to a judgment debtor, such property, of whatever kind, can only be recovered in an action by the receiver. Sherwood v. Railroad Co., 12 How. Prac. 136; Robinson v. Wood (Sup.) 15 N. Y. Supp. 169. For these reasons this order must be and is affirmed, with costs and disbursements. Order affirmed, with costs and disbursements. All concur. LEARY et al. v. ALBANY BREWING CO. (Supreme Court, Appellate Division, Fourth Department. November 19, 1901.) 1. COMPULSORY REFERENCE-LONG ACCOUNT-REAL ISSUE. Where, in an action to recover for plumbing and other work on defendant's building, a schedule containing 43 items, 18 of them less than $1, and so small as to preclude controversy as to their value, was attached to the complaint, and the answer contained a general denial, but with a special averment that defendant had had no dealings whatever with plaintiffs, it was error to order a compulsory reference; it being apparent that the real issue was whether the work was authorized by defendant, and not the examination of a long account. 2. SAME-WHAT CONSTITUTES. A claim for plumbing and other work on defendant's building, covering 43 items, only 9 days' work being charged for, and the services and materials being furnished in doing one piece of work, and relating to one transaction, is not a "long account," within Code Civ. Proc. § 1013, authorizing a compulsory reference of cases involving long accounts. Appeal from special term, Herkimer county. Action by John F. Leary and another, composing the firm of Leary & Malone, against the Albany Brewing Company. From an order granting defendant's motion to appoint a referee, plaintiffs appeal. Reversed. The action was commenced on the 25th day of March, 1901, to recover for materials alleged to have been furnished to, and services rendered for, the defendant, during the month of December, 1900, of the value of $153.33. A schedule was attached to the complaint, and made a part thereof, which was an itemized statement of the plaintiffs' alleged account, and contained 43 items, ranging in amounts from $35.75 to 6 cents; 18 of them being for sums less than $1. The defendant by its answer denies every allegation in the complaint, except that it is a domestic corporation, and specifically alleges that it had no dealings of any kind or nature whatsoever with the plaintiffs. Argued before ADAMS, P. J., and MCLENNAN, SPRING, WILLIAMS, and HISCOCK, JJ. Raymond D. Fuller, for appellants. MCLENNAN, J. It is apparent that the principal question to be determined between the parties to this action is whether or not the plaintiffs furnished materials to, and rendered services for, the defendant. The papers submitted upon this motion make it perfectly clear that the plaintiffs did certain plumbing and work upon a certain building in the city of Little Falls, for which they seek to recover in this action. In form, by its general denial, the defendant denies this, but its substantial defense is contained in the specific allegation that it had no dealings whatsoever with the plaintiffs; in other words, that whatever work, if any, was done by the plaintiffs upon the building in question, was done without the authority of the defendant or by its procurement, and was not in any manner ratified by it. So the real issue to be tried is whether or not the occupant of the building, who ordered the improvements, was acting for the defendant in so doing. It is true that each item of the plaintiffs' 72 N.Y.S.-42 and 106 New York State Reporter account may be litigated under the defendant's answer, but that is exceedingly improbable. Many of the items are small, involving only a few cents, and are of such a character as to substantially preclude controversy as to their amount or value. It is not enough to justify a compulsory reference that the case may by possibility involve the examination of a long account. Enough must be alleged or shown to justify the inference that such will be the course of the trial. Thayer v. McNaughton, 117 N. Y. 111, 22 N. E. 562. A compulsory reference cannot be ordered unless it appears with reasonable certainty that the hearing of the case will require the examination of a long account. Spence v. Simis, 137 N. Y. 616, 33 N. E. 554; Cassidy v. McFarland, 139 N. Y. 201, 34 N. E. 893. Only nine days' work is charged for, and the entire job was completed within a month. The services were rendered and the materials furnished in doing a single piece of work, and related to one transaction. We think that for that reason, considering all the circumstances, the plaintiffs' claim was not a long account, within the meaning of section 1013 of the Code of Civil Procedure. In Feeter v. Arkenburgh, 147 N. Y. 237, 41 N. E. 518, the headnote is as follows, viz.: "Compulsory Reference-Long Account. In an action to recover for services alleged to have been rendered by plaintiff as an attorney, the complaint alleged an indebtedness for drawing, copying, and engrossing various instruments, examining accounts of certain executors before the surrogate, and in counseling and advising the defendant concerning her rights, duties, and obligations as an executrix, and for divers journeys and other attendance in and about the business of the defendant at her request, and for money paid, laid out, and expended by plaintiff in and about defendant's business. Attached to the complaint, and made a part thereof, was a bill containing about 150 items. The answer denied the allegations of the complaint, and upon motion of plaintiff an order of reference was granted. Held error; that the bill of items showed that plaintiff's services were confined mainly to looking after the interests of defendant as an executrix of a single estate, and one or two personal matters, and related substantially to one transaction, and was not a long account, within the meaning of section 1013, Code Civ. Proc. Mem. of decision below, 87 Hun, 619, 33 N. Y. Supp. 1127." It follows that the order appealed from should be reversed. Order reversed, with $10 costs and disbursements to the appellant, and motion denied, with $10 costs. All concur; WILLIAMS, J., in result, and HISCOCK, J., in result on the ground that the facts in this case did not warrant a compulsory reference. (65 App. Div. 349.) INDIA RUBBER CO. v. KATZ et al. (Supreme Court, Appellate Division, First Department. November 15, 1901.) 1. ATTACHMENT-VALIDITY-SITUS. Though a debtor is a foreign corporation, where it deposits money within the jurisdiction of the court, and has an office in such jurisdiction for the transaction of business, such money is subject to levy at the instance of a resident for a debt incurred in the course of the corporation's business within the state. 2. SAME-MONEY IN CUSTODIA LEGIS. Where money is paid by a foreign corporation to the chamberlain to furnish security for the payment of a debt, such money, though in custodia legis, is subject to levy on attachment for such debt. Appeal from trial term, New York county. Action by the India Rubber Company against Edward A. Katz and William F. Grell, sheriff of the county of New York, substituted in place of the American Bicycle Company. From a judgment in favor of defendants, and an order granting extra allowances to defendants, plaintiff appeals. Affirmed. Appeal from a judgment entered upon a decision of the trial court after a trial without a jury, and from an order granting an extra allowance to each of the defendants. This action was originally brought by the plaintiff, India Rubber Company, a foreign corporation, organized in the state of Ohio, and having no office in this state, against the American Bicycle Company, also a foreign corporation, organized under the laws of New Jersey, but having an office for and transacting business in the city of New York, to recover the sum of $28,685.09 for goods sold and delivered by the plaintiff to such defendant. The American Bicycle Company admitted its indebtedness to the plaintiff, and presented a petition to the court so admitting, but alleging that the defendants herein claimed said sum by reason of a levy under a warrant of attachment in an action brought by Edward A. Katz, and asking that it be allowed to deposit the amount with the chamberlain of the city of New York, and that it be discharged from all liability, and that the attaching creditor, Katz, and the sheriff levying the attachment be substituted as defendants in the action in its place and stead. This petition was granted, and an order was made permitting the deposit of the amount of the debt with the city chamberlain, and directing that Edward A. Katz and the sheriff, William F. Grell, be substituted as parties defendant herein. The deposit was made pursuant to the order, and the plaintiff afterwards served an amended complaint upon the present defendants, each of whom appeared by attorney and set up the attachment suit and a levy thereunder before the commencement of this action. After the deposit was made with the city chamberlain the defendant sheriff, pursuant to the attachment mentioned, levied upon said sum so deposited in the hands of the chamberlain. A motion was made by this plaintiff in the action brought by Katz against it to set aside the levy upon the debt of the American Bicycle Company to it, but the motion was denied, and upon an appeal to this court from the order denying the motion the order was affirmed. The defendant sheriff has not attempted to take possession of the moneys levied upon in the hands of the chamberlain, and has not attempted to enforce the levy made, except by serving a notice of attachment upon the American Bicycle Company and upon the chamberlain. It is not contended but that the attachment issued in the action by Katz against the plaintiff is valid. There is no dispute as to the facts in the case, and it was submitted and decided upon an agreed statement of facts. The trial court directed a dismissal of the complaint on the merits, and judgment was entered accordingly. Motions were made by the defendants for extra allowances, which were granted, and from the judgment and the order granting such allowances this appeal is taken. Argued before VAN BRUNT, P. J., and HATCH, PATTERSON, INGRAHAM, and LAUGHLIN, JJ. Joseph Kling, for appellant. Mark H. Ellison, for respondent Katz. HATCH, J. The appellant contends that the levy made under the attachment in favor of the defendant Katz was invalid for the reason that both the debtor and creditor were foreign corporations, and that therefore no levy under an attachment granted by the courts of this state is authorized. Reliance is placed in support of this contention upon the case of Carr v. Corcoran, 44 App. Div. 97, 60 N. Y. Supp. 763; but in that case both the debtor and the cred |