
    Jacob Morgenthaler, Appellant, v. Thomas G. Carlin, Respondent.
    Second Department,
    May 7, 1909.
    Beference — stipulation fixing rate of fees construed.
    Where parties to a reference stipulate that the referee’s fees “ shall be |10 per hour for each sitting,” the agreement limits his right to compensation, and he is not entitled to the statutory compensation of ten dollars a day in addition when not sitting.
    Gxynob, J., dissented, with opinion.
    Appeal by the plaintiff, Jacob Morgenthaler, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 1st day of December, 1908, denying the plaintiff’s motion for a retaxation of costs.
    
      Conrad Saxe Keyes, for the appellant.
    
      Harlan Moore, for the respondent.
   Hirschberg, P. J.:

The only question in dispute is the amount of fees of the referee appointed to hear and determine the issues in the action. The papers do not disclose the nature of the action excepting that it resulted in a report awarding to the plaintiff a recovery in the sum of $1,627.80. The referee’s fees were taxed at the sum of $610 or at the rate of $10 per hour for sixty-one hours consumed at the hearings. A further charge of $460, at the rate of $10 per day for forty-six days, which the referee claimed he was engaged in the work of the reference in examining testimony and in the preparation of his report, was disallowed by the county clerk and by the Special Term on the motion for retaxation.

It is provided by section 3296 of the Code of Civil Procedure that a referee shall be entitled to ten dollars for each day spent in the business of the reference, unless a different rate of compensation is fixed by consent of the parties. In this case a different rate of compensation was fixed by stipulation and duly entered in the minutes, and it provided “ that the referee’s fees shall be ten dollars per hour for each sitting.” The appellant’s claim is that the stipulation was intended to cover the compensation of the referee for. the sittings only, and that he was at liberty to charge the per diem allowance under the provisions of the Code for service rendered as referee when not sitting. In the absence of any clear indication in the stipulation to the contrary, I am inclined to the view that the stipulation should be regarded as the entire understanding or agreement of the parties, and that the referee’s fees were, therefore, fixed at ten dollars per hour, measured by the number of hours of actual sittings. Had the intention been to allow in addition the statutory compensation on days when no hearings were had, such intention should have been embraced in the stipulation.

As was said in Mead v. Tuckerman (105 N. Y. 557, 560), “ When counsel undertake to fix the rate of compensation by agreement, it is but just that their intention should be manifested in such a formal and authentic manner as to leave no doubt.” In that case the stipiilation provided that the compensation of the referee should be the sum of twenty dollars per day “for every hearing,” and further provided that he should be paid a “ corresponding rate ” for the time devoted to consideration of the case after submission (Court of Appeals Cases, vol. 678, Brooklyn Law Library; Id. vol. 1090, No. 5, p. 5, N. Y. State Law Library), but the claim was made that he was also entitled to the pay for, the days which had been assigned to hearings but where the hearings had. been postponed by arrangement between the counsel prior to the day fixed. The court said' (p. 559): “ The right to fees beyond the statutory rate depends solely upon the written stipulation. It is impossible, we think, to extend the meaning of the words 1 every hearing ’ in the stipulation so as to include days appointed for a hearing, but on which no hearing in fact was had, and when in advance of the time apjiointed the parties, by arrangement, had agreed upon a postponement, and, in pursuance thereof, had omitted to appear before the referee. It might have been proper to have provided for this contingency in the stipulation. But the stipulation is silent on the' subject and we cannot, in face of the statute, give any force to the alleged oral agreement or understanding between the counsel and the referee that- the word ‘ hearing ’ should be deemed to include appointments of hearing. The word hearing ’ is unambiguous, and to give effect to the oral evidence would be adding a material term to the stipulation, contrary to settled rules of evidence.”

I think in this case the stipulation is to be regarded as entire'and as the fixing of a rate of compensation in the place of that provided by the Code. I think the object was to fix a rate of compensation which should be- measured by the hours actually employed in the hearings, rather than, as under the Code, by the number of days spent in the business of the reference. Certainly there is nothing to indicate any clear intention to compensate the referee by both methods. Mor is such intention to he deduced from a strict construction of the stipulation.

The order should be affirmed, with, ten dollars costs and disbursements.

Woodward, Jenks and Miller, JJ., concurred; Gaynor, J., read for reversal.

Gaynor, J. (dissenting):

The code provides that a referee shall be entitled to $10 a day “for each day spent in the business of the reference”, unless “ a different rate of compensation ” be fixed by the consent of the parties before the trial or hearing begins. In this ease the parties changed the statutory rate only in respect, of sittings during the trial. They made no change in respect of the referee’s fees for the days he should spend on the case after-the trial was over. The stipulation was that the referee might employ a stenographer “ for the purposes of the trial”, such stenographer’s fees to be equally divided between the parties, and “ that the referee’s, fees shall be ten dollars per hour for each sitting”. How is not this plainly a provision for the trial only ? How can we deduce from it that the referee was to have no compensation for his work after the trial wras over ? Ho such thing was said, nor is it fairly inferable. The statute gave hirn the right to $10 a day therefor, and it cannot be denied him unless he gave it up by assenting to the stipulation, which said no such thing, but provided for the time, to be taken by the trial only. The case of Mead v. Tuckerman (105 N. Y. 557) is not in point.

Order affirmed, with ten dollars costs and disbursements.  