
    Charles Devlin, Respondent, against The Mayor, Aldermen and Commonalty of the City of New York (Impleaded), Appellant.
    (Decided February 4th, 1878.)
    A referee appointed by the court in a referable action to hear and determine the issues, where .he is not willing to act for the statutory compensation, and one o£ the parties is unwilling to agree to pay a higher rate, should not declare that he will go on with the reference, and expect to be paid such higher rate, and look to the prevailing party therefor, and hold his report as security for such payment unless ordered to give it up without such payment; and where in such a case the counsel objecting to such increased compensation refused to proceed, and withdrew:—Held!, that they were justified in refusing to proceed with the trial under such conditions, and-that the referee should be removed and another appointed in his place.
    Appeal by the defendant, the corporation of the city •of New York, from an order of this court made by Judge Joseph F. Daly at special term, denying a motion to remove William H. Leonard, Esq., as referee, and vacate the ■order of reference to him.
    The facts appearing on the motion are shown in the following extract from the opinion delivered on denying the motion :
    
      “ This cause has been at issue in this court several years ; it was referred in 1865, tried, and a decision rendered in favor of plaintiff. The judgment entered on that decision was reversed by the general term of this court, and judgment absolute ordered, in favor of the defendants, the mayor, aldermen and commonalty of the city of New York against the plaintiff and the other defendants. (Reportedin 48 How.' Pr. R. 457.) Upon appeal the Court of Appeals affirmed the judgment of the general term, so far as the reversal of the judgment entered on the report of the referee was concerned, but reversed it in so far as judgment absolute for the corporation was rendered, and ordered a new trial. (Reported in 68 N. Y. 8.) The cause was subsequently referred by this court to the Hon. Wm. H. Leonard, to hear and determine.
    “It appears that when the respective parties attended by counsel before the referee, on April 18, 1877, pursuant to notice of hearing, the following proceedings took place—the plaintiff being represented by Mr. Joseph J. Marrin, the corporation by Messrs. W. O. and C. A. H. Bartlett, and the defendant Donaldson by Mr. T. C. Cronin.
    “ The referee : There is sometimes an objection that the statute allows only $3 a meeting for referee’s fees. Is there an agreement between you in relation to that ? - I am in the habit of charging $5 an hour.
    “ Mr. Bartlett: I think that is an exceedingly reasonable charge, but I am not instructed on that point; I can only say that I presume the corporation counsel will agree to amr customary charge; I shall not object to any myself; I don’t want it to appear hereafter, myself, that I surrendered any interests of the city; I think it is a monstrous statute.
    “ The referee: I could,not act as referee at $3 a sitting.
    “ Mr. Cronin: By the next meeting you will be informed as to that.
    “Mr. Bartlett: Yes; 1 have no apprehension that there will be any difficulty about it.
    “ For this session I would pay it out of my own pocket; I will be responsible myself for this session, and if the corporation counsel objects I shall notify you of it, and I would refuse to proceed with the reference unless he does consent.
    “ At the subsequent meeting of May 10th, 1877, Mr. Bartlett, on behalf of the corporation, declined to stipulate for a higher compensation to the referee than the statute fees of S3 (Code, § 313), and exhibited a letter to himself from the corporation counsel, in which the latter wrote that where there was no especial appropriation made by the city to pay referees’ fees, and where a reference rvas ordered against his (the corporation counsel’s) opposition, he wo aid-not agree to any charge greater than the three dollars per diem, the statutory allowance.
    “ At the next meeting (May 11th, 1877) the following proceeding took place while the stenographer who reports the proceeding was present.
    “ Mr. W. 0. Bartlett, dictating to the stenographer.
    “ Mr. Bartlett says : Having refused yesterday to assent to any agreemént for the payment of more than the statutory fees, Mr. Marrin to-day gives notice that the plaintiff will be responsible for any difference between the statutory fees and the charges of the referee.
    “ The referee: I do not choose to be beholden to the promises of either party unless they unite in the agreement; I will try this case, and when the case is submitted, and my decision is prepared, I will notify the prevailing party, and shall expect to charge the customary fee of five dollars an hour, and five dollars for every adjournment, which I shall expect the prevailing party to pay, and shall consider myself entitled to hold my report as security until it is paid or until the prevailing party assents to doing so, unless the court shall ■order me to deliver it without such payment.
    “Mr. Bartlett: Whereupon Mr. Bartlett refuses to go on.
    “ Mr. Cronin : The defendants, other than the city, are willing to stipulate, under the section of the Code, in writing, that the fees of the referee be fixed at a larger sum than the sum of three dollars a day, and at the usual rate of five dollars an hour.
    “ Mr. Burwell (from the office of Scott and Crowell, having ■come in since the stenographer began to take notes): And the ■defendant, Thomas Hope, concurs in what Mr. Cronin says.
    “ Mr. Marrin: Mr. Martin says that these minutes are now being taken by the stenographer from the mouth of Mr. Bartlett after what was really said had been said before the referee, and before the stenographer began to take his minutes, and that what he, Mr. Marrin, said was that, as far as the plaintiff was concerned, he was willing to agree to the usual charges in excess of the statutory allowance, and that this was said by him before any thing was said by Mr. Bartlett about withdrawing from the case or refusing to go on.
    “ Mr. Bartlett: Mr. Bartlett says that he understood the words of Mr. Marrin to be precisely as he has stated them, and he has no earthly doubt whatever that he spoke those words ; that he believes he spoke them now, and that being ■called upon to answer whether they were correct or not he refused to deny them or dispute them.
    “ He understood Mr. Marrin to say that the plaintiff would be responsible.
    “ Mr. Marrin: Mr. Martin says that he did not refuse to answer any question that Mr. Bartlett put; but that a question arising before the referee as to. who was entitled to speak first,1 Mr. Cronin or himself, he submitted himself to the order of the court until such time as tie should be allowed to speak, and that so far as the words “being responsible for” go he did use them and uses them now, but uses them in connection with the other part of what he said, to wit: that the plaintiff was willing to agree under the statute with the other defendants and be responsible for his share of the-fees, in excess of the statutory allowance.
    “ Mr. Bartlett: There is a legal point involved here.
    “ Mr. Marrin: Won’t you state it ?
    “ Mr. Bartlett: I don’t suppose, your honor, after an offer is made by one party to be responsible for an amount of fees that the other party refuses, assent to, will think for a moment of going on with the reference.
    “The referee: I do not see any reason why I should not proceed.
    “ Mr. Marrin: Suppose we go before another referee, Judge Mitchell for instance, and you won’t agree to pay him more than three dollars a day, and then we go before another and another referee, and so defeat altogether the order of the Court.
    “ The referee: It is idle to discuss this—proceed with the case.
    “ The Messrs. Bartlett then withdrew.
    “ Upon these proceedings the corporation counsel moves for an order removing the referee and vacating the order of reference.”
    
      William O. Bartlett, for appellant.
    
      T. C. Cronin and J. J. Marrin, for respondent.
   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.
     