SHULTZ a. WHITNEY

SHULTZ a. WHITNEY. New York Common Pleas; Special Term, August, 1859. Referee’s Fees.—Taxation of Costs. Where upon taxation of costs, the sum claimed by the prevailing party, as his disbursement for referee’s fees, is objected to, and no writing is produced agreeing to any particular compensation, the allowance cannot exceed three dollars for each day spent by the referee, in person, in the business of the reference. When the time actually spent by the referee is disputed, it must be shown affirmatively by affidavit or otherwise. A referee is not entitled to charge for services of a third person before whom the parties agree to proceed with the reference, in the referee’s absence. On appeal from taxation of costs, the respondent produced a new affidavit in support of the clerk’s decision, which was read then for the first time, but without objection on the part of the appellants. Held, that the court should determine the question upon the papers which were before the clerk at the time of the taxation; but being of opinion that his taxation was erroneous, they would refer to the new affidavit for the purpose of ascertaining whether there were any new facts by reason of which they should properly order a readjustment before the clerk, instead of correcting the error themselves. Where objection is made to the charge of the referee, the proper proof of the time actually spent by him, is his affidavit thereto. Appeal from decision of the clerk in taxing costs upon entering judgment on the report of a referee. The action was brought to foreclose a mechanic’s lien. The cause was referred to Edward P. Cowles, Esq. He reported in favor of the defendants. They gave the usual notice of taxation of costs, in which the amount charged for referee’s fees was three hundred and twenty-five dollars, being for sixty-five meetings at $5 each. The plaintiff’s attorney attended on the taxation and objected to this sum, but the clerk allowed the charge; and the plaintiff now appealed from his taxation, and asked a readjustment. The principal affidavit on which the motion for readjustment was based, was that of the plaintiff himself. He stated that the case was referred to Edward P. Cowles, Esq., as referee ; that the parties appeared and proceeded with said reference on the 20th of October, 1857 ; that the testimony was taken before “ a young man by the name of Paterson,” in the office of said Cowles; that altogether there were sixteen meetings at which testimony was taken at said referee’s office; that upwards of twenty adjournments were had in consequence of the referee being absent, and Paterson being engaged in taking testimony in other cases, &c., &c. On behalf of defendants was introduced the affidavit of Mr. Paterson, stating the proceedings had before the referee, and which affidavit was used before the clerk. All the matters in this affidavit were restated more elaborately in a second affidavit by Paterson, read for the first time upon the hearing of this appeal. This second affidavit was substantially as follows : “ Edward Paterson, being duly sworn, says that he is the managing clerk of Edward P. Cowles, the referee herein, and as such managing clerk, has the charge of the books of the business of the said Cowles, and attends to the keeping of such books, both in regard to references before said Cowles and to his private law businessthat deponent kept a record of the days appointed for the hearing of the above-entitled action before the referee therein, and that a just and true account of said days appears in the papers hereunto annexed, and that the same was correctly taken from such aforesaid record. [The paper annexed gave merely the dates of the sixty-five meetings.] That it has always been the custom of the said Cowles, in every reference before him, to charge five dollars for each day appointed foi- a hearing of such reference, unless some larger sum is agreed upon; that such custom is well known to the profession in the city, and, as deponent believes, was known to the attorney of the plaintiff at the time the hearing of this case was brought on before the referee; that the aggregate number of days appointed for hearing herein is sixty, as appears by said original record and the hereunto annexed paper, and which was kept by deponent at the time, and, as he believes, is correct; and that, after the submission of the case by the counsel therein for the respective parties, the referee was, to the knowledge of deponent, engaged for several days in the examination of the said case, and of the testimony therein, which was very voluminous, and in the decision of the same, and in the preparation of the report, and that he was so engaged, to deponent’s knowledge, at least five days ; that deponent did on very many occasions take testimony in this action in place of said Cowles; that he so acted at the solicitation of the attorneys and counsel of the respective parties; that deponent has no recollection of any occasion at which the reference herein was postponed in consequence of the engagement either of the said referee or of deponent, nor does he believe that any postponement was at any time necessitated by any such engagement, but that whatever adjournments were had at the said hearings, were so had upon the application of the parties, to the best of deponent’s recollection ; that it is not true that there were but sixteen days upon which testimony was taken in this casé, but on the contrary thereof, more than sixteen days were so occupied in taking testimony ; that deponent knows Charles Shultz, the plaintiff, and that he was unfrequently present at the meetings before the referee, but that he was represented at such meetings by his counsel. And deponent further says that the referee on several occasions said to the parties in this action he would always attend and take the testimony in person whenever either one wished him personally to do so, and not to hesitate to require his personal attention at all times when either party so desired ; that the testimony should be taken by deponent only at such times when both parties were satisfied with it.” Richmond a. Hamilton (Supreme Court, First District; At Chambers, October, 1858).—This cause came before the court on a motion to vacate order of reference and subsequent proceedings. The facts are stated in the opinion. Ingraham, J.—This case was referred to a referee, who reported in favor of the defendants. They refused to take up the report on account of the large amount charged by the referee for his fees. They paid him $100, and demanded the report, which he retained for the balance of the fees claimed by him, and the report is still in his hands. The plaintiff now moves for an order vacating the order of reference, and setting aside the subsequent proceedings. This relief certainly is not the proper one. The case has been tried and decided, and it would be very unnecessary to put the parties to the trouble and expense of a new trial. The plaintiff may take an order directing the defendants to file the report within ten days, and enter up judgment thereon; and in default thereof, giving plaintiff leave so to do without costs. Any dispute as to the amount of the referee’s fees may be settled by requiring the referee to have the same taxed. No costs are allowed on this motion. [MAJORITY — Hilton, J.] Hilton, J. The plaintiff instituted proceedings under the mechanics’ lien law, against the building known as Laura Keene’s Theatre, claiming a balance due him of$883.41 for brick furnished by him towards its erection. After issue found the cause was referred by consent of parties, and it appearing from the referee’s report, that at the time of filing the plaintiff’s notice of lien, there was nothing owing or due from the owners to the contractors, who undertook the erection of the building, and who purchased the brick from the plaintiff, the defendants became entitled to judgment. "Upon entering the judgment the clerk adjusted the defendant’s costs at $399.94, of which $325 was allowed for referee’s fees, $60 for the fees of the defendant’s attorney, and the residue was made up of witnesses’ fees and other disbursements. From this adjustment the plaintiff has appealed to the court, to have rescinded the action of the clerk in allowing the sum stated for the fees of the referee. It is necessary, therefore, to look at the existing statutes respecting such fees, and also into the affidavits and papers presented to the clerk at the time of the adjustment, to determine as to the propriety of this action. By the Code (§ 311) he is required to insert in the entry of judgment on the application of the prevailing party, and upon notice to the other, the allowance for costs, the necessary disbursements, including the fees of officers, the fees of referee, &c. These disbursements must be stated in detail, and verified by affidavit, and a copy of the items composing the costs and disbursements must be served with the notice of adjustment. By section 313 the fees of a referee are fixed at three dollars for every day spent in the business of the reference; but the parties are permitted to agree in writing upon any other rate of compensation. These statutory provisions seem clearly to define the duty of the clerk upon adjusting the amount to be included in the costs of the prevailing party for the fees of a referee. Where the sum claimed is objected to, if no writing is produced agreeing upon any particular compensation, the allowance cannot exceed “ three dollars for each day spent in the business of the reference,” and when the time actually spent by the referee is disputed, then it must be shown affirmatively by affidavit or by other equally competent proof. By these rules, then, will the affidavits be tested, and this review be governed. The objecting affidavit was made by plaintiff, who stated that the reference began October 20, 1857, and the testimony was taken before a young man in the office of the referee, and altogether there were sixteen meetings at which testimony was so taken ; that upwards of twenty adjournments were had, in consequence of the referee being absent, and the young man referred to, being engaged taking testimony in other cases, was consequently unable to proceed with this; and that the referee has charged for sixty meetings, and five days for preparing his report, making in all sixty-five days, at $5 each day—all of which the plaintiff says is illegal and unjust. In opposition to this, and also for the purpose of supporting the claim made, the defendants produced two affidavits of the young man referred to, stating himself to be the managing clerk of the referee, having the charge of keeping his books relating to references and law business; that he kept a record of the number of days appointed for hearing therein, and he attaches a copy thereof; that it is the custom of the referee to charge §5 for each day so appointed in cases referred to him, unless a larger sum is agreed on; that the record shows the number of days so appointed to be sixty; and after the cause was submitted, the referee was, to the knowledge of the young man referred to, engaged for several days in the examination of the case preparatory to, and in the decision of, the same ; that the testimony was taken by him at the solicitation of the counsel for both parties, and he has no recollection of any occasion at which this cause was postponed in consequence of engagements either of the referee or of himself, nor does he believe that any postponement was necessitated by any such engagement. These affidavits, together with the receipt of the referee, showing the payment to him of the amount claimed, were the only proofs before the clerk at the time of the adjustment, and I think it cannot be said that they are sufficient to justify the allowance of any sum whatever for referee’s fees, unless it be considered that the “ several days” spent in determining the case are stated and verified with sufficient detail or definiteness to justify the allowance of at least one, and at most three days for that particular service. It is quite immaterial what number of days were appointed for the reference, unless it be shown that the referee attended in person at the appointed time and place ; nor can it be important to know the custom of the referee in respect to his charges, when there is no writing produced showing an agreement of the parties upon the subject. The law allows a fixed sum for every day spent by the referee in person on. the business of the reference, and, to entitle a referee to this sum, he must show actual attendance at the time and place fixed for the hearing. Here proof by a young man in his office of a copy of a record kept by him in the referee’s books, standing alone in opposition to the positive statement of the other side that but sixteen meetings were actually had, at which testimony was taken, and the adjournments were in consequence of the absence of the referee and the engagements of his young man (who appears to have been the clerk before whom all the testimony was actually taken), is not sufficient to justify any allowance whatever for referee’s fees in an action. Although it was assumed on the argument before me that the service of this young man might be regarded as the service of the referee, yet I do not upon reflection perceive how this view can be entertained under the peculiar phraseology of the statute. The fee can only be allowed for each day spent by the referee in the business of the reference, and if the parties agree to dispense with his presence at the hearing, and he absents himself, I do not see how the fact that his clerk wrote down a statement of the witness which the parties agreed to regard as evidence, can, upon objection, entitle him to the fee which the statute only allows for actual and personal service. His inability, on account of other references or engagements, to attend to the trial which then court, at the request of the parties, had intrusted to him, would be a sufficient reason for appointing another referee,—his clerk, indeed, if the parties desired it,—but it furnishes no reason for allowing him a fee for a service he has never performed. I say never performed, because I cannot admit that a referee, any more than a judge or juror, can act by proxy in the trial of an action; and as a referee cannot so act, it follows that no fee can be allowed for any service shown or claimed to have been thus rendered. The actual presence of the referee is required as a condition precedent to the allowance of any fee for the hearing of a matter referred to him ; and this presence must in all cases be shown affirmatively, when, as in the present instance, his absence is urged as an .objection to the fees claimed by him, upon the adjustment of costs by the clerk. If the parties in any case, by consent, take testimony before a person mutually agreed upon, there certainly can be no objection to such a course; but the prevailing party cannot be permitted to charge for the services thus rendered as a disbursement in the cause, if the item is objected to, much less can such person be regarded as a referee, or considered as entitled to the fees of such an officer, if the action has not been regularly referred to him by the court. I have therefore examined this case upon the proofs and affidavits presented to the clerk at the time of the adjustment of the costs by him, and without reference to another affidavit which was read by the defendant’s counsel upon the argument of the motion by way of review before me. The fact that the affidavit thus read was not before the clerk, would be a sufficient reason for disregarding it; but as the counsel for the plaintiff did not object to it at the time, I see no obstacle in the way of my referring to it for the purpose of ascertaining whether, upon a readjustment, any additional facts might be shown under which the allowance by the clerk might be justified. Because, if all the facts which can be presented are now before me, there will exist no necessity for ordering a readjustment. This affidavit is made by the same young man, who, in addition to the matter before verified by him, says“That the referee was to his knowledge actually engaged five days in examining the testimony taken, and in preparing his report; also, that the referee said upon several occasions to the parties, that he would attend and take the testimony in person when either desired him to do so.” From, all this (and the additional affidavit does not contain any thing else material in my opinion), it is apparent that the referee never did actually attend in person at any time when witnesses were examined, but all was written down by the clerk in his absence, and finally submitted to him for his opinion and decision. Under such circumstances it would not be unreasonable, where the testimony is voluminous, to suppose that five days would be spent in examining and preparing a report upon it, nor would it be improper to allow five days for such a service when the proof is conclusive in respect to it. But it can hardly be said that the proof here furnished is of such a character. In the nature of things it is not probable that even a clerk in a referee’s office can state positively upon what the mind of the referee is occupied during five days, and it cannot be presumed that it would take one-half the time to read the written evidence in the present case, which seems to be one of a very ordinary kind, such as are usually tried before a judge of this court at a single session. Ebr does the report itself furnish any positive indication upon this point, as it is less tiran three pages in length. Usually in these cases the affidavit of the referee should be required before any allowance of this description is made; but as the plaintiff’s counsel has not objected to the affidavit here produced, I am at liberty to regard it, and act upon the facts stated in it. Under it the referee is entitled to be allowed for five days spent in the business of the reference, at $3 for each day. The costs and judgment of the defendants will therefore be reduced by deducting from the amount allowed for referee’s fees, and included in said judgment, the sum of $310, and the proper order to that effect will be entered.