
    Blunt v. Whitney and others.
    Where an action to recover counsel fees was referred after issue., by a rule of court, to three referees, to be heard and determined by them on legal and equitable principles, it was held-, that the cause was thereby taken out of court, and submitted to arbitration, and that the court had no jurisdiction to hear a motion, to set aside the referees' report.
    The reference was a good parol submission to arbitration, and the plaintiff, in whose favor the referees reported, can maintain an action upon their report as an award.
    (Before Oakley, Ch. J., and Vanderpoel and Sandford, J. J.)
    March 13, 14;
    April 14, 1849.
    This was a motion to set aside the report of referees, made in favor of the plaintiff in the above suit; on which the plaintiff contended, that by the reference, the suit was out of court, and that the court could not entertain the motion. The facts are stated in tire opinion of the judge.
    
      0. Livingston and W. G. Wetrnore, for the defendants.
    
      J. Blunt, in person.
   By the Cocet.

Oakley, Oh, J.

The plaintiff, Blunt, and the six defendants, Whitney and others, were the owners of real estate situated in the north-eastern part of the city of New York, and were annoyed by various erections of the butchers, which they complained of as nuisances, such as a hide house, a melting house, and the like. A public meeting of those interested in putting down these nuisances was held, at which a committee was appointed to raise funds for the purpose of removing them by legal proceedings. The plaintiff, and all the defendants in this suit, except J. C. Merritt, were members of this committee. It did not appear that any new committee was ever appointed, or any action had for that purpose.

A vigorous and protracted litigation with the butchers ensued. The committee directed the plaintiff, who was an attorney’, solicitor and counsellor, to file one bill in chancery, and I). P. Hall, Esq., to file another; and they retained George Wood, Esq., as counsel. The direct action of the committee there ceased. The chancery suit proceeded, and an indictment for a nuisance was obtained and tried in respect of the melting house. After a long controversy the butchers were defeated, and the defendants and their associates were substantially successful in the litigation.

The means relied upon for conducting it by the committee, a subscription or assessment, did not suffice to pay the entire expense. The plaintiff claimed a large sum for his counsel fees in the suits. His costs were not in question. There was no satisfactory evidence of any action of the committee as such, in retaining the plaintiff as counsel; but it was shown that some individual members knew of his acting in that capacity, and others attended meetings of the committee where Ms acts were spoken of; and thus there was evidence from which a retainer might be inferred.

The plaintiff’s demand for counsel fees remaining unpaid, he brought a suit against the defendants for its recovery. After the cause was at issue, on the 14-th of December, 1848, a rule of court was entered by the written consent of the parties, referring the cause to three referees, “ to hear and determine the matters in controversy on legal and equitable principles.” They have tried the cause, and have made a report awarding twelve hundred dollars to the plaintiff. In their special report of the case, the referees stale the principles on which they proceeded. Tims, from the entire sum fixed upon by them, they deducted one seventh as the proportion which, on equitable principles (to use their own words), the plaintiff himself ought to bear. They proceed to say, “ And as some of the items might not be fully proved, and some overcharged in the hill of particulars compared with the evidence, and as the plaintiff received some benefit in the taxed costs recovered by him, and the referees were to determine the matters in controversy on legal and equitable principles, they deemed it equitable to deduct from the plaintiff’s bill” certain other sums specified. And after some further observations, they say they were satisfied that the sum allowed by them was “no more than a just and equitable compensation” to the plaintiff.

Thus it appears that the referees very properly considered and decided the case on equitable'grounds and principles. And the fact stated, that they required the plaintiff, as one of the committee, to contribute his proportion of his own claim, shows that the action could not be maintained at law at all.

In short, the reference took the causé out of court and submitted it to arbitration; and the report is no doubt a good award, on a parol submission.

The defendants move to set it aside, but we cannot entertain the motion at all. The case has passed beyond our jurisdiction.

The report must be treated as an award made on equitable principles, on which the plaintiff can probably maintain an action. Or, if so advised, he may apply by motion to enter a judgment upon it; but it now seems to us that such a motion cannot be granted. We can make no order on the subject now, and must dismiss the application for -want of jurisdiction.  