v.

1 Duer 651

Opinion

By the Court. Bosworth, J.

Is the prevailing party in an action which has been referred, entitled to recover a term fee of $10 for every term of the court which intervenes between the date of the order of reference, and the filing of the "referee’s report?

After it has been referred, it is not only not necessarily on the calendar, but cannot properly be on it at all. Costs therefore cannot be allowed under § 307-, Sub. 8.

For the trial of the issues before the referee, sub. 4 prescribes the costs to be allowed.

Referees have the same power as the court, to impose the payment of costs as a condition to granting a postponement of the trial (§ 314). It is to be presumed that the referee in this case discreetly exercised this power, in granting adjournments from time to time. At all events, no complaint is made that it was not so exercised in this case.

If the cause was difficult or extraordinary, or the prosecution or defence of it was unreasonably or unfairly conducted, a per centagé may be allowed on the sum recovered, or. claimed (§§ 308, 309).

But no costs can be allowed for the terms that elapse between ordering and closing the reference, for the reason that none are given by law. Ho costs are - allowed for the term at which a cause is tried, for or on account of its having been on the calendar that term (§ 307, Sub. 8). . The only costs allowed for that term, excepting disbursements, are costs for “the trial” of the action. Whether the trial takes two days or two terms, the compensation under § 307 is the same.

If any additional costs are recovered, they must be obtained through an allowance by way of a per centage—under sections 308 and 309.