
    Charles C. Dickinson, as Assignee of Eugene M. Earle, Individually and for the Benefit of Creditors, and as Assignee of Eugene M. Earle and William Pitt Earle, as Copartners, for the Benefit of Creditors, Appellant, v. Eugene M. Earle and Others, Respondents.
    (No. 2.)
    
      Where the report of a referee and the judgment thereon, are set aside the costs fall with them,.
    
    Where the Appellate Division affirms an order of the Special Term, setting aside the report of a referee and the judgment entered thereon because of misconduct on the part of the referee, the costs taxed in favor of the party who succeeded upon the reference fall with the judgment, and an appeal from an order denying .his motion for a relaxation of such costs will be dismissed.
    
      Appeal by the plaintiff, Charles C. Dickinson, as assignee of Eugene M. Earle, individually and for the benefit of creditors, and as assignee of Eugene M. Earle and William "Pitt Earle, as copartners, for the benefit of creditors, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 3d day of May, 1901, denying the plaintiff’s motion for a retaxation of costs.
    
      H. D. Luce, for the appellant.
    ■ Benjamin N. Gardozo, for the respondents.
   Ingraham, J.:

It appears from an appeal argued and decided herewith {ante, p. 134) that the Special Term has set aside the report of the referee and the judgment entered thereon and ordered a new trial before another referee, and that order has been affirmed by this court. The costs fall with the judgment and no question is presented on this appeal that we are now required to determine. The appeal should, therefore, be dismissed. If, however, the question argued was before us, we agree with the court below. The amount claimed for referee’s fees was $5,180 ; the clerk on taxation allowed $2,590. From the affidavit of the referee it appears that at the commencement of the reference there was a stipulation that “ the referee may fix such fees for himself in this matter as may be reasonable, and in doing so he shall not be limited to the legal statutory fee.” ' The attorney for the defendants, at the time this stipulation was proposed, called the attention of the referee and the plaintiff’s attorney to the fact that such a stipulation would have no effect. The attorney for one of the defendants swears that the referee stated that if he charged any sum that was unreasonable he was quite content that his fees should be objected to; that after this statement the stipulation was entered upon the minutes; and that the deponent was never aware of the amount that the referee intended to charge. It also appears that the referee charged for ninety-seven days when evidence was taken; sixty-eight days upon which the proceedings were adjourned at which no testimony was taken,.and ninety-four days for examining the case and the preparation of his report; that the case was submitted November 15, 1900, and the report was filed on the 30th of March, 1901, one hundred and thirty-five days, including Sundays and holidays, of which the referee says he- spent ninety-four in determining a case which seems to have been free from difficult legal questions. This would seem to be impossible. The cleric allowed for two hundred and fifty-nine days at ten dollars per day, and the complaint is that the referee was entitled to more, not that too much was allowed. There was no valid stipulation between the parties fixing the fees of this referee at twenty dollars a day, the defendants having expressly refused to sign such a stipulation, and the referee was entitled to no more than his legal fees, ten dollars a day. This he was allowed by the clerk.

The appeal is, therefore, dismissed, with ten dollars costs and disbursements.

■ Patterson, O’Brien and Laughlin, JJ., concurred; Van Brunt, P. J., concurred in result.

Appeal dismissed, with ten dollars costs and disbursements.  