
    DINKEL v. WEHLE.
    N. Y. Common Pleas; General Term,
    
    
      November, 1881.
    Liability of Attorney for Referee’s Fees.—What is Payment of them.—Accord and Satisfaction.—Removal to Common Pleas.—When too late to make Motion therefor.
    Where the doubtful responsibility of the client is discussed, and the personal obligation of the attorney for referee’s fees, is given and accepted, he is liable for their payment.
    A party under commitment for contempt in refusing to pay referee’s fees, was released upon paying them, the referee stipulating to repay the amount if the order for commitment were reversed. The order was reversed, and an action brought against the referee on the stipulation, and settled by refunding part of the amount received. In a subsequent action by the referee to recover his fees from the attorney who had personally promised to pay them,—Held, that there had been neither payment nor an accord and satisfaction, and the referee could recover his fees, less the balance received and not paid in settlement of the action on the stipulation.
    After an adjournment had at defendant’s request it is too late to remove a cause from a district court to the court of common pleas.
    Appeal from a judgment of the district court in the city of New York for the third judicial district, in favor of the plaintiff for the sum of ¿119.49.
    The plaintiff was appointed referee in the case of Fischer v. Raab by order of the court of common pleas for the city and county of New York, dated September 17, 1878.
    The defendant was the attorney of Mr. Fischer, and had applied for the reference on the argument of a motion to continue an injunction, in which he had been met by a number of affidavits in opposition ; the order of reference provided that he was to pay the expense of the reference, unless Mr. Raab and others should testify to certain facts before the referee. After a contest, the referee found against Mr. Fischer, who thereupon commenced to press his action for trial. The court ordered Mr. Fischer to pay the referee’s fees, amounting to $130, and for refusing to do so, a commitment was issued and he was incarcerated in jail. (See Fischer v. Raab, 56 How. Pr. 218.)
    
    While there, the defendant, his attorney, moved for a stay of proceedings pending his appeal from the order of commitment. Judge J. F. Daly, in an opinion dated December 17,1878, decided that Mr. Fischer was not entitled to a stay of proceedings on his conviction of contempt, except upon payment of the amount id had been decided he should pay. “ I will grant the stay upon condition that plaintiff pay the referee’s fees to Judge Dinkel, the referee, taking the stipulation of the latter to repay the same if it should be hereafter determined by this court that the plaintiff was not bound under the order of September 17,1878 [the order of reference], to pay such fees.” The order of commitment was dated December 4, 1878.
    On December 18, 1878, the defendant signed a stipulation, reciting that in the event that the order of commitment made December 4, 1878, adjudicating Mr. Fischer guilty of contempt, was reversed, he would pay back the $130, referee’s fees.
    Judge Daly having required no such stipulation, when the defendant came before him to seek his client’s release, upon the claim that the referee’s fees had been paid, and he learned of the stipulation from Mr. Raab’s attorneys, he refused to release the prisoner unless such stipulation was returned, and the correct one taken.
    The plaintiff tendered the correct stipulation, but defendant refused to receive it, and to give back the other. The court of common pleas affirmed the order of commitment of December 4, 1878 (See Fischer v. Raab, 58 How. Pr. 221), but the court of appeals reversed it (See 81 N. Y. 235).
    No appeal was taken from the order of reference of September 17, 1878.
    The referee’s report was confirmed and the order of confirmation was not appealed from.
    Upon the reversal of the order of commitment defendant commenced an action in the supreme court upon the stipulation to recover back the $130, referee’s fees paid to the plaintiff.
    The answer of the plaintiff set up the fraud of the defendant in procuring the same, and that said stipulation was fraudulent and void.
    The plaintiff paid defendant $100 “in full settlement of the above entitled action,” and an order of discontinuance was entered. The plaintiff then brought this action in the third, district court to recover his referee’s fees, claiming only $99.99.
    The answer was a general denial, and an adjournment was had at request of defendant to March 11, 1881, on which day defendant moved to fix the amount of the undertaking to remove the action on the ground that the summons claimed interest from the — day of -, 18—. The motion was denied.
    The plaintiff proved by the witnesses that before proceeding with the reference he learned that the parties were poor, and had proceeded upon the promise and credit of the respective attorneys, whoever lost, to pay the fees.
    Defendant called no witnesses, but contended that there had been payment and an accord and satisfaction.
    The justice gave a judgment for the plaintiff, and defendant appealed to the general term of the court of common pleas.
    
      Algernon S. Sullivan, for defendant, appellant, and Henry Wehle, in person.
    I. Plaintiff has no cause of action of any kind. • Assuming even that a promise, oral or written, can be claimed to have been established, the fact is conclusively shown that defendant paid the entire amount of plaintiff’s bill. • Whatever may have been the promises annexed to the receipt, however those promises may have been obtained, the fact is indisputable that plaintiff received defendant’s check for $130 and collected that check from the bank.
    II. The plaintiff has not shown that he returned to Mr. Wehle the amount thus paid or any part thereof ; but suppose he had done so, he could not maintain an action for such amount voluntarily paid by him, nor, is this an action to recover money paid by plaintiff; it is a suit for “referee’s fees” which che plaintiff has collected and received, as admitted by him upon the trial and in the receipt.
    
      III. The plaintiff has failed to show any promise on the part of defendant, because no assertion of it was made upon any occasion before this suit was brought.
    IV. The pretense that he was induced by a misrepresentation to sign the stipulation is insincere. If he had been led to make an agreement through fraud he had a right to impeach it for fraud or misstatement, but then he was bound to repudiate it promptly and to return the consideration received by him. But plaintiff did not do this, he cried fraud, misrepresentation, but refused to part with the money which was paid to him upon the agreement which he assailed and wished to repudiate.
    V. The settlement of the supreme court suit was a complete accord and satisfaction of the defendant’s claim against the plaintiff; of course the right of the plaintiff to the money which he paid to defendant upon that settlement was completely barred by the settlement.
    
      George F. Langbein, for plaintiff.
    I. The return day of the summons was March 5, 1881, on which day it Avas adjourned at defendants’ request to March 11, 1881, for trial/ after this, the defendant could not remove the case because the statute requires that the application for removal must be made before an adjournment has been had at the defendant’s request (Code, § 3216).
    II. There was no accord and satisfaction for the referee’s fees which were due from the defendant to plaintiff. 1. The stipulation to pay back the referee’s fees was obtained by fraud. The decision of Judge Daly required a stipulation to pay back the fees, if t he order of reference was reversed by this court—the court of common pleas, not the court of appeals. The court of common pleas affirmed the order of commitment, and no court ever reversed the order of reference. 2. The reversal of the order of commitment did not concern the question whether the referee’s fees were due the plaintiff or not. 3. The stipulation was to pay hade the fees, not to relinquish his right to recover them ultimately. The court of appeals simply decided that the commitment was not the mode to collect referee’s fees, it did not preclude his right to receive, or collect them in any other manner. 4. The supreme court action «being based upon the fraudulent stipulation, the settlement of that action merely settled the issue in it; whether that stipulation was fraudu-1 lently obtained or not, it did not settle the referee’s fees. If, at most, settled that plaintiff could not hold or retain them under that stipulation, as they had been paid conditionally, but it did not settle that plaintiff was not to receive or be paid his referee’s fees at all. It was an accord and satisfaction as to that stipulation ; defendant could not sue upon it again successfully. The accord and satisfaction was as to that stipulation, the action thereon, and the defense of fraud thereon, and not as to the referee’s fees. The referee’s fees were left due and unpaid, and plaintiff was left to his original claim and remedy to get his referee’s fees. There was no issue, or question as to the liability for referee’s fees in the supreme court action, and therefore that question was not settled by the settlement and discontinuance of that action. None of the papers on that settlement refer to, or mention that the $100, referee’s fees repaid, was in settlement of the referee’s fees due to plaintiff. This would have been nonsense.
    III. The plaintiff was entitled to an absolute, unconditional, irrevocable payment of the referee’s fees, and this was never made. He received the referee’s fees conditionally under a stipulation to pay them back, in the event the condition happened;—'it did happen and he paid them back;—ergo, he has not been paid his referee’s fees.
    
      IV. The plaintiff indisputably earned, and. is entitled to payment of, the referee’s fees. He is entitled to an absolute, unconditional, irrevocable payment. The payment he received was a conditional one, under a fraudulent stipulation, he paid them back upon the happening of the condition under that stipulation, upon the settlement and discontinuance of an action upon it. It is an insult to common sense to argue , that this deprived the plaintiff of the final, absolute, unconditional payment of his referee’s fees. As a matter of common sense, and as a matter of fact, the referee’s fees have never been paid.
   J. F. Daly, J.

The action was brought by the plaintiff, who had been appointed referee, by the court of common pleas in the action of Fischer v. Raab, to recover his fees as such referee on an alleged personal agreement of defendant, who was Fischer’s attorney, to pay them. The fees amounted to $330. After they were earned, defendant, in order to procure the release of his client who had been committed by the court of common pleas for contempt in not paying the said fees, offered the amount to plaintiff, on condition that the latter would sign a stipulation to return the money if the order committing Fischer should be reversed on appeal. Plaintiff took the money on this condition and signed the stipulation. The order was reversed, and this defendant sued this plaintiff in the supreme court upon the stipulation to recover back the $130. The answer set up fraud in procuring the stipulation ; but the suit was settled before trial by this plaintiff retaining $30 and paying over $100. The plaintiff placed his demand at $99.99 to prevent a removal of the cause to this court (Code, § 3216), but as the summons contained in the printed portion of the blank form used, a demand of interest, defendant claimed the whole demand to be over $100, and insisted on his right of removal. This right was not urged, however, until after an. adjournment had on his own application. As to the alleged right of removal the amended return shows that it was claimed after an adjournment had at defendant’s request. It was then too late (Code, § 3216).

On the question whether the justice was justified in finding a personal agreement on defendant’s part to pay the fees, it seems that the evidence supports the finding. Ordinarily the attorney would be assumed to act as agent for his client in undertaking for the expenses of a litigation ; but in this case it seems that the doubtful responsibility of the client was discussed, and the personal obligation of the attorney given and accepted. In arriving at the result, I do not find any error ; nor does there seem to be any improper rulings by the justice in the course of the trial. Only two are specifically mentioned in the appellant’s brief. The first question excluded was manifestly improper, as it called for the witness’s conclusion as to the effect of a lost paper, instead of calling for its contents. The second, admitted testimony of transactions between defendant and plaintiff personally. What error there was in this was not pointed out, and I can conceive of none.

The main point in this case is whether, as matter of law, plaintiff was entitled to recover after he had settled the supreme court action with defendant by retaining $30 and paying back $100 under the stipulation he signed when defendant originally handed him $130. I see nothing in any of the transactions to affect the claim on which recovéry has been had here.

The proof having established that defendant agreed personally to pay the fees of the referee, he became the principal debtor for the amount. When he tendered the $130 to the referee and exacted a stipulation that it should be returned in the event of the reversal of the order committing his client, he did not pay his indebtedness to the referee, because payment mustbe unconditional. He did not tender the amount in order to discharge the indebtedness, but simply to obtain his client’s release from jail under the decision of the court of common pleas providing for payment of the fees by Fischer under a certain stipulation. The payment was, therefore, in another right than defendant’s own, and for another purpose than to cancel his obligation to the referee, and was collateral to such obligation, and the money so received by the referee was in effect a security for the indebtedness, which might or might not become available to him as creditor, upon the happening of a certain contingency. Had the result established the ref eree’s right to retain the $130, it would, it is true, have extinguished the debt, as the collection of collaterals has always that effect pro tanto / but the condition of the stipulation operated to require him to relinquish the fund or security, which he did, except as to $30, that he was suffered to retain. This $30 being credited, as it had to be, on the debt, a clear right of recovery for the balance existed. As the supreme court suit was brought by this defendant against this plaintiff to, recover back the $130 under the stipulation, and as the the issues therein raised, related only to the validity of that instrument, the settlement and adjournment of that litigation determined nothing except that the referee had the right to retain $30 of the collaterals and was bound to surrender $100 of the fund.

This claim was accordingly reduced by the amount retained, and the justice properly gave him judgment for the balance.

Judgment affirmed, with costs.

The defendant thereupon made a motion for leave to appeal, from the affirmance of the judgment, to the court of appeals.

Van Brunt and Beach, JJ.

There seems to be no sufficient reason for allowing this case to go to the court of appeals. Motion denied.  