
    James J. Nealis, Respondent, v. John H. W. Meyer, Appellant.
    (Supreme Court, Appellate Term,
    September, 1897.)
    L,¡Referee — Bight;-to feeoyer fees—.When failure to .deliver -report,-isV ,. immaterial. ......... yl
    
    A referee appointed in an-action,may ,recover compensation-for his.r . services without proving an express promise to pay, and; the -factr or that’top did - not, deliver or; file .his report within-sixty .¡days, fitom,-the, ¡time, when the- cause was finally submitted to him, is not material; where there, is no proof or ..suggestion,that,either party had, because, b, of such failure of the referee to- file, or deliver'his report, elected to - ./-terminate the. reference.. . -, /,
    2.' District Courts', bf New York city^Extra'-costs — When: a,-“trial’?) has been had. b
    - Where the defendant appears by an attorney in an action-'brought in a District Court of the city of New York,-and the 'attorney- cross! examines the plaintiff with a view to defeat his recovery, a “trial” has been had- and the justice has power -in his discretion to allow: : '-'the plaintiff $5 extra -'costs under the amendment made by' chapter 750 of the- Laws of 1894, to the Consolidation- Act (chap. 410, Laws of-b 1882).
    Appeal by defendant from judgment of tbe First Judicial District Court. .' _
    F. Eberhardt, for, appellant.
    P. P. Brady, for respondent.
   McAdam, J.

On December. 18, 189 5, the plaintiff was appointed, referee in,a Supreme Court action wherein the above-named defend-, a,nt,.was, plaintiff.and one Boylan defendant. .There were ,four, sittings before the referee, for which he became entitled to the. statutory .fee of $6 a day. Code, 1895, § 3296. He yus, algo; entitled to charge one sitting for preparing his report. Rothschild v. Werner, 4 Law Bulb 28; Von Prochazka v. Von Prochazka, 2 City Ct. Rep. 440. The justice awarded ,$30 for the five days sj>ent on the business of the reference, together with $6.75 paid by the referee for stenographer’s fees.

The defendant asks for a-reversal of the judgment because the referee, did not deliver or file his report within sixty days, from the time the cause was finally submitted,' as required by' section 1019 of the Code. That point was not raised in the court below, where it might perhaps have been obviated by proof óf waiver or the like,, and cannot be urged for the first, time upon appeal.., 8 Enc. Pl. & Pr. 157. There is no proof or suggestion that either party elected to terminate the reference, and until such election delivery or filing though after sixty days is Sufficient. O’Neill v. Howe, 16 Daly, 181. It is only where such election ,is exercised or the services become valueless by reason of some culpable neglect of the referee, that he forfeits or loses his, fees. See. Geib v. Topping, 83 N. Y. 46. Forfeitures are not favored, hence not generally implied.

A referee or arbitrator may by a common-law action recover compensation for his services without proving. an express promise to pay, for the obligation to compensate is implied from the beneficial nature of the services, aided, by the attendance of the parties, from which their consent sufficiently appears. Hinman v. Hapgood, 1 Den. 188; Hoff. Ref. 78; Little v. Lynch, 99 N. Y. 112.

The defendant objects to the allowance of the stenographer’s fees on the ground that there is no proof that he authorized their payment. This objection, like the former one, was not made , in the court below, where the required evidence might have been supplied, and cannot for that reason be urged now. Gerding v. Haskin, 141 N. Y. at p. 520.

■ It is also insisted by the defendant that the justice had no power to allow five dollars extra costs under the amendment of 1894 (Laws 1894, chap. 750) to the Consolidation Act, upon the ground that no .trial was in fact had. The case cited by appellant (People ex.fel. Lunn v. Langbein, 12 Week. Dig. 20) is. not in point be-' cause there the defendant was personally absent; his counsel made an application for a postponement, and that being denied remained during the inquest to cross-examine the, witness. Hone of these facts appear in the present case. The defendant appeared by an attorney, who cross-examined the plaintiff for the' purpose of defeating his recovery; so that there was a trial within the proper meaning of that term, and the justice in his discretion had the power to make the award of extra costs.

Judgment affirmed, with costs.

Daly, P. J., and Bischoff, J., concur.

Judgment affirmed, with costs.  