
    Hans K. Frost, Plaintiff, v. Theresa Reinach, Defendant.
    (Supreme Court, New York Special Term,
    April, 1903.)
    Reference — To determine an attorney’s compensation upon a substitution — Costs — Practice where the justice goes out of office.
    A reference, to determine what compensation should be given the attorney in an action, ordered upon a motion for the substitution of a new attorney, is one merely for the referee to take testimony and report his opinion, in aid of the conscience of the court.
    Tbe referee has no power to give the original attorney costs against his client; and where there are no costs there can be no extra allowance.
    The motion remains before the court, and where the justice who> heard the motion goes out of office pending the reference, it is proper practice for the original attorney, or his counsel, to bring the matter again before the court by moving to confirm the referee’s report in his favor.
    Motion to confirm a referee’s report and for an extra allowance.
    Samuel D. Levy, for motion.
    H. M. Levin, opposed.
   Gildersleeve, J.

In the case at bar a motion was made for the substitution of another attorney for the defendant in place ■of Mr. Sigmund Feuchtwanger, who was then attorney of record for the defendant Theresa Reinaqh, in an action brought against her by Hans K. Frost. The motion was granted upon payment to Mr. Feuchtwanger for his services, and the justice made an ■order referring the matter to Mr. H. W. Bridges to “ determine the value ” of such services, and the order provided that “ on the •confirmation of the referee’s report and the payment by defendant to said Feuchtwanger of the amount reported due to him, the substitution is to be made, otherwise the motion is denied.” Instead of conducting his own case before the referee Mr. Feuchtwanger retained Mr. Samuel D. Levy to represent him. The referee took testimony and made a report awarding a “ judgment for $195, together with costs and expenses of the reference,” against the defendant. Mr. Levy now moves to “ confirm the report and for an extra allowance.” Hpon a motion for the substitution of attorneys in a pending action, a reference, ordered to ascertain the amount of the attorney’s lien, although in form it may be one to hear and determine the matters in difference, is, in fact, one to take evidence and report to the court, so that it may be enabled to fix the amount of the lien. Dean v. Driggs, 82 Hun, 561. The court, upon a practice motion, has no power to order a reference to hear and determine, but can only direct a referee to take testimony and report with his opinion thereon. Matter of Lord, 81 Hun, 590. The reference in the case at bar was, therefore, not a reference to hear and determine, but one in aid of the conscience of the court. The report of the referee is in nowise binding on the court, who can accept or reject the conclusions of the referee, as the court may see fit. Marshall v. Meech, 51 N. Y. 140. The referee cannot determine the competency of evidence, but must take what is offered and leave the ■question of competency to the court. Scott v. Williams, 23 How. Pr. 393. The referee was absolutely without power to grant ■costs against defendant in favor of Mr. Feuchtwanger. The •only authority or duty of the referee was to take testimony concerning the value of the lien of Mr. Feuchtwanger and report the same, with his opinion thereon. So far as the motion for an •extra allowance is concerned, it is well settled that no allowance can be given where no costs are allowed in favor of the party

asking such allowance. Jordan v. Hess, 54 N. Y. St. Repr. 326. So far as the conclusions of the referee as to the value of the services of Mr. Feuehtwanger are concerned I think the amount allowed is excessive. It appears that practically all the services consisted in making a motion to compel the disclosure of the residence of the plaintiff, and in making a motion for security for costs and in preparing the answer. For this work the referee allows a value of $225, of which $30 have been already paid. I think the sum of $100, in addition to the $30’ already paid, is sufficient for the services rendered in the action by Mr. Feuchtwanger for the defendant. Ordinarily where a reference in aid of the conscience of the court has been ordered, to take testimony and report concerning facts in dispute upon a motion pending before the court, it is not necessary to present exceptions te the report in order to contest the accuracy of the referee’s findings (Martin v. Hodges, 45 Hun, 38), nor to make a formal motion to confirm the report. The motion, on which the reference was ordered, technically speaking, remains pending before the court until the return of the testimony and report; whereupon the court, with the additional light thus thrown upon the question, proceeds to determine the original motion. In-the case at bar the justice, before whom the motion for substitution was made, went out of office before the return of the testimony and report as to the value of the attorney’s services; and the powers of a judge, with respect to actions or proceedings or motions pending before the court, terminate when he ceases to-be a judge. Matter of Mayor, 139 N. Y. 140, affg. 69 Hun, 270. As we have seen, the order already entered on this motion grants the motion, but leaves the amount of the sum to be paid, as a condition for granting the same, still to be determined. Hnder such circumstances the course pursued by Mr. Levy, in moving for a confirmation of the referee’s report, seems to be the proper practice in order to bring the matter again before the court, especially as that is the course indicated in the order of Mr. Justice Steckler. Ho costs or extra allowance can be allowed, as I have indicated above. Hor do I allow, under the circumstances, any costs of the motion. The reference appears to have been prolonged to an unnecessary extent, and the resulting expenses are unduly large. The order of Mr. Justice Steckler does not provide by whom these expenses shall be borne. It does not seem just that the defendant should pay an unnecessarily large hill for the expenses of the reference, in addition to the full value of the attorney’s services, for the privilege of changing her attorney. Still the delay and procrastination of the reference seem to have been as much the fault of one party to such reference as of the other. The question as to the proportion in which the expenses should be borne may be decided upon the settlement of the order, which shall be on two days’ notice and upon memoranda handed up by the respective counsel.

Ordered accordingly.  