
    ADAM BROWN, Plaintiff and Appellant, v. SIGMUND P. WINDMULLER et al, Defendants and Respondents.
    Referees:—Their fees maybe fixed by the agreement of parties at the trial, entered upon the minutes at an amount in excess of the allowance made bylaw (Thurman v. Fiske, 30 How. Pr. 397; Code, § 313 ; Philbin v. Patrick, 22 How. Pr. 1).
    
      Before Barbour, Ch. J., and Monell and Van Vorst, JJ.
    
      Decided May 3, 1873.
    In all cases of taxation of referees’ foes, when opposition is made, the disbursements for referees’ fees should be supported by affidavit, beyond the ordinary general affidavit of the attorney of the disbursements in the action, for such an affidavit is not the best evidence of the facts.
    Proof by affidavit should clearly show the time spent by the referee "in the business of the reference,” and that this time was necessarily required.
    Such explicit proof is more necessary in a case similar to this, where it appears that the referee interrupted one of the counsel in his summing up, after he had been speaking only ten minutes, with these words : “ You have already read from your brief long enough to call this a sitting, and we will now adjourn; and I hope you will make the reading of your brief occupy as many days as possible, as I am sure of getting paid for the time by the defendants; for whenever I send to them for a check for my fees I always get it.”
    A charge as for aday, at $15.00 for each of the hearings so interrupted, and a continuation and repetition of which were so boldly requested, is not allowable. For these reasons the adjustment of costs is vacated and a re-adjustment ordered, and upon the hearing the clerk should require satisfactory proof of affidavit, of
    1. The number of days the referee necessarily attended and spent on the hearing before the submission of the case.
    2. The number of days spent in the examination and decision of the case after submission.
    Appeal from an order confirming the adjustment of costs.
    
      A. H. H. Dawson, for appellant.
    
      James Taylor, for defendants.
   By the Court.—Van Vorst, J.

By the agreement of the parties on the trial, an entry of which was made in the minutes, the fees osf the referee were fixed at an amount per diem largly in excess of the allowance made "by law.

The parties could so agree (Thurman v. Fiske, 30 How. 397 ; Philbin v. Patrick, 22 How. 1; Code, § 313). There is a conflict in the affidavits used before the taxing officer on the adjustment of the costs, as to the number of days spent by the referee in the hearing and determination of the case.

But if the only question raised was as to the number of days necessarily spent by the referee, and there was a conflict in the statements, the decision of the clerk on such question of fact might not be disturbed.

But it is claimed by the plaintiff’s counsel that it is not shown that the number of days charged were necessarily devoted to the reference.

Section 811 of the Code provides that the clerk shall insert in the entry of judgment the “necessary disbursements,” including “fees of referees,” and that the disbursements shall be stated in detail and verified by affidavit.

In all cases, therefore, where opposition is made, the disbursement for referees’ fees should be supported by affidavit, and a general affidavit of the disbursements made by the attorney is not sufficient. His affidavit is not the best evidence of the fact.

In Shultz v. Whitney (9 Abbott 71), it is suggested that such affidavit be made by the referee himself. The referee only can know the number of day's spent in the case after its submission, and should furnish the evidence. The parties might, without doubt, waive this affidavit and accept the certificate of the referee of the days necessarily spent in the reference.

The fees of the referee in this case amount to the extraordinary large sum of three thousand and sixty dollars, and, under the objections made, should be established by legal satisfactory proof.

The affidavits of the plaintiff’s attorneys allege that from the stenographer’s notes of the trial the total number of meetings before the submission of the case was ninety-five, and that there were afterwards twenty sittings to hear arguments, and twenty adjournments, making in all one hundred and thirty-five sittings.

The affidavit of the defendants’ attorney fixes the number of sittings from his register at one hundred and fifty-two, but does not satisfactorily state the number of days spent by the referee in the examination and decision of the case after it was submitted. On the argument, however, it was stated that some fifty days were claimed by the referee to have been spent in examining the evidence and making his report. There is nothing before us to sustain a charge for any such number of days.

The certificate of the referee made after the delivery of the report cannot be regarded as legal evidence to justify the taxation of these fees. Proof by affidavit should show the number of days “ spent in the business of the reference,” and that they were so necessarily.

Such proof by affidavit is the more necessary in this case, where it appears by the uncontradicted affidavits of two of the attorneys of the plaintiff, that the referee interrupted one of the plaintiff’s counsel in his summing up, after he had been speaking only ten minutes, with these words: “You have already read “from your brief long enough to call this a sitting, and “we will now adjourn, and I hope you will make the “reading of your brief occupy as many days as possible, “ as I am sure of getting paid for the time by the defendants, for whenever I send to them for a check for “ my fees I always get it.”

It can scarcely be urged that a charge of fifteen dollars a day for hearings so interrupted and invited to be protracted, was allowable, or the hearing itself necessary. It clearly was not.

There is no affidavit to support the item, “costs allowed on amendment of complaint, $25.00.” There'is no statutory allowance for such charge, and if they were costs imposed by some order, the evidence should be produced. -Before allowing the term fees charged in the "bill, the clerk should "be satisfied that the cause was “ necessarily on the calendar” for these terms before the reference was ordered.

For these reasons the adjustment of the costs and disbursements made by the clerk is set aside, and the costs are directed to be re-adjusted by him. The re-adjustment may be had upon a notice of three days by either party.

The clerk should require satisfactory proof by affidavit of the number of days the referee necessarily attended and spent on the hearing before the submission of the case, and the number of days so spent in the examination and decision of the case after submission. And if, as is alleged, the plaintiff himself has paid to the referee for any part of the attendances charged, such sum should be deducted from the amount.

And should the bill of costs be reduced on the readjustment, the amount of the reduction should be taken from the judgment if it is already entered.

Barbour, Ch. J., and Monell, J., concurred.  