Devlin v. Mayor of New York

7 Daly 466, 54 How. Pr. 383

• Court: New York Court of Common Pleas
• Decided: February 4, 1878
• Status: Published

Opinion

By the court

*

The statute has fixed the amount of the referee’s fees, unless the parties agree to pay a larger sum. They did not agree in this case. The counsel for the corporation refused to assent to any agreement for the payment of more than the statutory fees. The only cour.se then for the referee was to proceed with the reference at the statutory rate of compensation, or to decline to act. This was not his decision. He decided that he would try the case; and after it was submitted, and his decision prepared that he would notify the prevailing party, “ when he should expect to charge the customary fee of $5 an hour, and $5 for every adjournment, which he should expect the prevailing party to pay, and should consider himself entitled to hold his report as security until that amount was paid, unless the court should order him to deliver it without such payment.”

We are of opinion that he could impose no such conditions. It was placing the counsel of the corporation in a very unpleasant position to require him to go on and try the case with that understanding after his opponent had agreed, and he had refused to agree, to the rate of compensation above named. It would not, we feel certain, have in any way affected the decision of the referee, but we are of opinion that a suitor cannot and ought not to be required to- go on and try a cause before a referee under such circumstances. In our opinion he has a right, as he may be liable for the payment of the fees, to require that the referee shall act for the compensation fixed by the statute, or that a new referee be appointed. We think, therefore, that the motion below should have been granted, and that the court should have appointed another referee.

The order appealed from should, therefore, be reversed.

Ordered accordingly.

Present, Chakl.es P. Daly, Ch. J., and Robinson, J.