
    George W. Hebard, as Executor of and Trustee under the Last Will and Testament of Marcelus Hartley, Deceased, Respondent, v. The City of New York, Appellant.
    First Department,
    April 22, 1910.
    Costs — reference — death of referee.
    A referee’s right to fees does not accrue until he has completed the reference and filed or delivered his report.
    Where a referee died before completing the reference, and defendant was- then allowed to amend upon payment of costs, a fee for the deceased referee is not a proper item.
    Appeal by the defendant, The City of New York, 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 10th day of March, 1910.
    
      
      Theodore Gonnoly, for the appellant.
    
      Edward W. 8. Johnston, for the respondent.
   Scott, J.:

This is an appeal from an order granting a retaxation of costs. The action was referred, by consent, to a referee, who died after holding a number of sessions, but who had not at the time of his death completed the reference or made a, report. Thereafter defendant moved for leave to amend its answer and was permitted to do so, upon payment of taxable costs. The plaintiff attempted to tax as part- of the costs a fee for the deceased referee, which the clerk refused to tax. It appeared that, no fee had actually been paid to the referee or his estate, and that no specific demand for such a fee had been made. That fact, however, is not decisive of this motion. It is well settled, and is not disputed, that under ordinary circumstances a referee’s right to fees does not accrue until he has completed the reference and filed or delivered his report. (Little v. Lynch, 99 N. Y. 112; Russell v. Lyth, 66 App. Div. 290; Bottoms v. Neeley, 124 id. 603.) The allowance of the referee’s fees is sought to be sustained under the rule that where one contracts to give personal services for a definite period, or until he has completed a particular piece of work, and is prevented, by an inevitable cause, such as death, from rendering full performance, he. will still be entitled to recover upon quantum meruit for the services actually rendered. Wolfe v. Howes (20 N. Y. 197) is cited as authority for this proposition, but the principal opinion' in that case was qualified by a concurring memorandum by Johnson, Oh. J., in which, as it is said, all the judges concurred, that “ quite a different question would be presented by a case where the services actually rendered should prove valueless; as e. g. if one should be retained to compose an original literary work and having faithfully employed himself in preparation, should die without having completed any work of value to the employer.” In the present , case neither party could reap any advantage from the partial completion of his work by the referee, for his death terminated the reference, and all that was done by him goes for nothing,, no advantage accruing therefrom to either party. •

The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, B. J., Laughlin, Clarke and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  