
    Thomas J. McVey, Resp’t, v. The Metropolitan Elevated Railroad Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed May 9, 1892.)
    
    Stenographer—Employment op.
    . On the hearing before a referee of the issues in a proceeding to acquire title to land by a railroad, the attorney for the railroad insisted upon the testimony being taken by a stenographer; and upon a failure to agree upon one, and plaintiff being proposed, said: “ Go ahead; I am satisfied." Said attorney took up the report and plaintiff's bill, and when the bill was-mislaid wrote to the referee for it. Held, sufficient to entitle plaintiff to recover for his services from defendant
    
      Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.
    Action to recover for plaintiff’s services as stenographer during a reference.
    
      Julien T. Davies and Byron Traver, for app’lt; Ira Leo Bamberger, for resp’t.
   Barnard, P. J.

The defendant made an application in the supreme court to acquire the title of lands belonging to one Siefke. The land owner made a denial of facts set forth in the petition, and the issues were, at the instance of the attorney for the defendant, referred to Rowland M. Stover to hear and determine. The land owner appeared when the order of reference was made and did not object thereto. When the hearing was reached. before the referee, the defendant’s attorney asked the referee to employ his stenographer to take the minutes. The referee was willing to employ him, but the defendant objected. The referee ■offered to write the testimony out in long hand or to send for a •stenographer himself. The defendant objected to the taking of the testimony in long hand and insisted on a stenographer. The parties failing to agree upon the appointment of the stenographer to the railroad company, the plaintiff took the testimony, and the sole question is whether the defendant’s attorney requested him to do so upon the credit of the-company. The witnesses to the transaction differ very materially as to the facts. The plaintiff testifies that the railroad attorney agreed to his appointment.

The attorneys representing the railroad deny this statement. The attorney for the land owner testifies that it was understood that the railroad company would have to pay the stenographer. The plaintiff testifies that the railroad company’s counsel, Mr. Lyman, upon the referee’s requesting him to take the testimony, looked at him and with a nod, said: “ Go ahead; I am satisfied.” The railroad company took up the report and with it the bill of the plaintiff. The next day the bill was lost and has never been paid. The letter of inquiry in respect to the loss was properly received. The bill was delivered to Mr. Lyman; the referee so testifies, and so does Mr. Lyman. On the next day the attorneys for the railroad wrote the referee that the bill could not be found in the papers, and this letter was received under the defendant’s objection. The letter harmonizes with the plaintiff’s theory. The railroad assumed the cost of the stenographer; requested him to take the testimony. The bill for his services went with the report and upon being mislaid the attorneys for the defendant wrote to have it sent to them, if left by mistake in the office of the referee. The question of fact was left to the jury and the verdict is supported by the probabilities of the case. The railroad should have paid for the expense of the stenographer, if a stenographer was forced in the case by the company. The stenographer of the attorney for the company was objected to. The plaintiff was appointed and did take the minutes.

The judgment should therefore be affirmed, with costs.

Dyicman and Pratt, JJ., concur."  