Griggs v. Guinn

21 N.Y.S. 451

• Court: The Superior Court of the City of New York and Buffalo
• Decided: November 10, 1892
• Status: Published

Opinion

GILDERSLEEVE, J.

The report of the referee herein should be modified as follows: First, by reducing counsel fee on reference from $75 to $50; second, the stipulation entered into in respect to referee's fees is too indefinite to be operative. No stipulation can suspend the operation of the statute, except it provides for a specific sum. Griggs v. Day, (Super. N. Y.) 18 N. Y. Supp. 796; Bank v. Tamajo, 77 N. Y. 476. The affidavit of the referee states that he spent 12 days in the business of the reference. The compensation fixed by the statute is $6 per day, unless a different rate of compensation is fixed by consent or order. Code, § 3296. It therefore follows that the referee is entitled to $72. His fee must be reduced from $150 to $72.

By chapter 185 of the Laws of 1892, section 3256 of the Code of Civil' Procedure was amended by providing that stenographer’s fees for minutes of testimony before a court, judge, or referee could be included in the taxable costs; but this chapter of the Laws of 1892 is clearly abrogated by a subsequent chapter, to wit, chapter 592 of the Laws of 1892, which also amends section 3256 of the Code, but leaves out the provision for stenographer’s fees, although it does not specifically repeal chapter 185 of the Laws of 1892.¹ Hence I know of no authority that authorizes the stenographer’s fees to be taxed as a disbursement in this proceeding against the opposition of counsel. Apparatus Co. v. Sargent, 43 Hun, 154. It therefore follows that.the sum reported by the referee as stenographer’s fees must be disallowed. The aggregate damages sustained by the defendant must be held to be $172. Thus modified, the report of the referee is confirmed.

1 Code Civil Proc. § 3256, relating to the disbursements to be included in the bill of costs, was amended by Laws 1892, c. 185. by adding a provision that stenographer’s fees for minutes of testimony before a court, judge, or referee could be included. Laws 1892, c. 592, did not refer to chapter 185, but amended section 3256 of the Code “so "as to read as follows,” etc., and left out the provision for stenographer’s fees.