
    Samuel H. Morrow, Respondent, v. Mary McMahon and Others, Individually and as Executors, etc., of William McMahon, Deceased, Appellants, Impleaded with Minnie L. Secor and Others, Respondents.
    
      Beferee’s report — the court cannot compel executor's to take up a referee’s report on an accounting.
    
    The interlocutory judgment, rendered in an action brought to obtain a construction of a will and for an accounting by the executors thereof, established the death of the plaintiff’s father, a beneficiary under the will, adjudged that the plaintiff had succeeded to his rights, and directed the executors to render an account. A referee was appointed to take and state the account, and after the hearing before him had been closed, but before the referee’s report had been delivered, the executors learned that the plaintiff’s father was not in fact dead and refused to take up the report.
    
      Held, that the court had-no power, upon the application of all the other parties to the action, to compel the executors to take up the report.
    Appeal by the defendants, Mary McMahon and others, individually and as executors, etc., of William McMahon, deceased, from an order of the Supreme Court, made at the Hew York Special Term and entered in the office of the clerk of the county of Hew York on the 2d day of January, 1902, directing the, appellants to pay the fees of a referee theretofore appointed in the action and to take up and file his report.
    
      William F. Clare, for the appellants.
    
      William H. Osborne, for the respondents.
   McLaughlin, J.:

This action was brought to settle the accounts of the appellants as executors of the last will and testament of William McMahon, deceased, to obtain a construction of his will, and to establish that James Morrow, the plaintiff’s father, a beneficiary and remainder-man thereunder, was dead, and by reason thereof that his interest in the estate belonged to the plaintiff. The plaintiff’s father was made a party defendant and the summons was served upon him by publication. He did not appear and an interlocutory judgment was thereafter entered declaring him dead, establishing the right of the plaintiff to his share in the estate as a beneficiary and remainderman, construing certain provisions of the will, and directing that the appellants as such executors and trustees render an account. The matter was sent to a referee to take and state the accounts, and after the hearings before him had been closed, but before his report had been rendered, information came to the appellants to the effect that the plaintiff’s father was not, in fact, dead, and for that reason they refused to take up the report. Thereupon the plaintiff and all of the other defendants made a motion to compel the appellants as trustees to take up the report and pay the fees of the referee, stenographer, etc. An order to this effect was made and they have appealed.

We are of the opinion that the court had no power to make the order appealed from. Under section 1019 of the Code of Civil Procedure, a referee’s report must, within sixty days after the matter is finally submitted to him, be filed with the clerk or delivered to the attorney for one of the parties, and if it is not filed or delivered within this time, either party to the action may, before it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the reference, and thereafter the action must proceed as if the reference had not been directed, and the referee, in that event, is not entitled to any fees. The right thus given to terminate a reference is an absolute one (Gregory v. Cryder, 10 Abb. Pr. [N. S.] 289), and a party cannot be deprived of it against his will. (Little v. Lynch, 99 N. Y. 112; Geib v. Topping, 83 id. 46.) In the Little case an order was affirmed which vacated a judgment entered upon a referee’s report filed after the reference had been terminated by the notice prescribed in the section of the Code referred to, the court saying: A referee is not bound to deliver his report without payment of his fees. The interest of the prevailing party will generally secure the taking up of the report. But if he fails to do so the referee must then file it in order to prevent a termination of the reference by notice under the statute. Upon filing the report, the referee may doubtless maintain an action for his fees. The acceptance of a reference is a voluntary act and the referee may decline the reference, but if he accepts it, he must rely for the payment of his fees upon the interest of the prevailing party to take up the report, and if he omits to do this, upon his common-law action to recover them, after putting himself in a position to maintain it, by filing the report” Here the report was not filed and the sixty days after the report had been ready for delivery had not expired.

The decision in Attorney-General v. Continental Life Ins. Co. (93 N. Y. 45) is not in point. There the referee was appointed by the court to take and state the accounts of a receiver, and on making a report in favor of the receiver he was directed to pay the referee’s fees out of moneys in his hands, the court saying: In this case the party in whose favor the report was made, being a receiver appointed by the court, whose legal expenses are properly payable out of the fund, the court had power, in the first instance, to order the referee’s fees paid directly out of the fund:” Nor does the fact that these appellants are trustees under a will distinguish this case from the Geib or Little cases. The Code makes no distinction between the rights of parties as individuals and those acting in a representative capacity.

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

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

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