
    Joel W. Russell, Respondent, v. Alfred Lyth, Appellant, Impleaded with Others.
    
      Referee — right to his fees on making his report — each party is liable therefor.
    
    A reieree appointed to hear, try and determine the issues in an action may decline to deliver his report until he has received payment of his fees, or he may deliver it without receiving such fees and resort to an action at law to obtain what he has earned.
    Each of the parties to the action, including those who protested against the ordering of a reference, is liable for the feus of the referee regardless of the fact that the judgment entered upon his report was reversed by the .Appellate Division.
    
      Appeal by the defendant, Alfred Lyth, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 12th day of January, 1901, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 6th day of January, 1901, denying the said defendant’s motion for a new trial made upon the minutes.
    The action was originally commenced in the Municipal Court of the city of Buffalo, where a judgment was rendered in favor of the plaintiff.
    
      H. J. Swift, for the appellant.
    
      Joel W. Russell, respondent, in person.
   Spuing, J.:

An action was pending in the Supreme Court in which the appellant was plaintiff. The trial was in progress when the justice presiding, foreseeing, that a long accounting between the parties was imminent, suspended the trial, and, against the. protest of the present appellant, ordered a reference to hear, try and determine the issues, and, as the parties were unable to agree upon a referee, the trial court directed that the plaintiff act in that capacity, and no objection to this selection seems to have been made by either party. The referee spent upwards of thirty days upon the trial and in the preparation of his report, and disposed of the case favorably to the defendants in the action, and delivered his report to the attorney for the defendants, but his fees were not paid. Judgment was entered pursuant to the report, and upon appeal it was reversed and a new trial ordered before another referee (Lyth v. Green, 21 App. Div. 300). The plaintiff has never been paid for his services as referee, and this action was commenced against all the parties to the action tried by him to recover the compensation to which he claims to be entitled therefor. The only party served was the present appellant, and, in fact, the other defendants named are irresponsible.

The principal contention of the appellant is that because the reference was ordered against his will he is absolved from any liability for the payment of the fees of the referee. This position is untenable. "When a suitor is in court to secure an adjustment of.his diffieulties lie submits himself -to the procedure of the court applicable to his case. The power of the court to order a reference where the examination of a long account is required (Code Civ. Proc. § 1013) is a matter which pertains to the mode of procedure to the remedy and is incident to the action. There was no appeal from the order in this case, and we niust assume, therefore, that the court at the Trial Term was justified in directing the reference. Hot only was no objection made to the appointment of the plaintiff as referee, but the appellant with, his attorney attended the protracted trial daily, participating in it and submitting the questions involved in the action to the plaintiff. In every aspect of the case, therefore, he must be held to have acquiesced in the appointment of the plaintiff.

The Code of Civil Procedure (§ 1019) requires the referee, upon the completion of his report, either to file it with the clerk or deliver it “ to the attorney for one of the parties within sixty days from the time of the final submission of the case. There is no requirement that he deliver it to the attorney for the prevailing party, although that may be the usual practice, nor is it obligatory that he exact the payment of his fees before the delivery of his report. His compensation is not dependent upon the solvency of the successful party, or the ability or willingness of the attorney of that party to pay. The referee may decline to comply with the statuté until his fees are paid and run the hazard of having the reference terminated, or he may file or deliver his report without receiving his compensation and resort to an action at law to obtain what hé has earned. A dispute may arise as to the amount of his compensation. That compensation is to be adjusted by the taxing officer, and the attorney for the prevailing party may regard the charge made as excessive. The referee, rather than have the reference terminated, may prefer to file or deliver his report and trust to his commoñ-law action to recover for the services he has rendered.

Presumptively the services have been valuable to both parties, and their character and the fact that they were performed with the acquiescénce of all the litigants raise an implied promise to pay him the compensation- to which he is entitled. (Nealis v. Meyer, 21 Misc. Rep. 344; Hinman v. Hapgood, 1 Den. 188.)

In effect, he was employed by all the parties to the litigation to perform, a specific service at a fixed recompense, and like any other employee he can hold liable each of his employers. The Code regulates the compensation of the referee as a disbursement among the litigants, but there is no limitation upon their common-law liability to pay him for the labor rendered at their instance.

The referee was entitled to compensation as soon as he delivered his report, and that right is unaffected by the fact that the appellate court disagreed with the conclusions reached by him.

The judgment and order should be affirmed, with costs and disbursements to the respondents.

All concurred, except Hiscook, J., not sitting.

Judgment and order affirmed, with costs.  