
    Goldie Eckstein, Respondent, v. Abraham B. Schleimer, Appellant.
    (Supreme Court, Appellate Term,
    April, 1909.)
    Stenographers — Fees and compensation: Persons liable therefor: Amount — Custom as regulating — Reasonableness of custom.
    Where an order of reference in an action provided that the defendant should file an undertaking as security for the expenses of the reference if he should be defeated and that the costs of the reference should be charged to the defeated party and the plain tiff succeeds, an unofficial stenographer who took the testimony may sue either party to the reference for her fees upon their implied contract to pay the reasonable value of her services.
    In an action against the successful party by an unofficial stenographer, who took the testimony upon the reference, claiming twenty-five cents a folio for every folio transcribed by her and the sum of five dollars for every hearing at which she was present hut which was adjourned without taking testimony, she testified to a general custom among stenographers of charging twenty-five cents a folio for transcribing testimony at a reference and to charge five dollars for every hearing adjourned without taking testimony. Held, on appeal from a judgment in her favor, that, while an unofficial stenographer employed to take testimony at a reference is not limited by the provisions of section 3311 of the Code of Civil Procedure fixing the rate to be charged by official stenographers in the Supreme Court at ten cent's a folio, a custom of charging as testified to by plaintiff is unreasonable and cannot be enforced; that, to sustain an implied contract to pay said rates, plaintiff must show that her services were reasonably worth that sum.
    
      Appeal by the defendant from a judgment of the Municipal- Court of the city of ¡New York, seventh district, borough of Manhattan, rendered in favor of the plaintiff.
    Abraham B. Schleimer, for appellant, in person.
    Andrew F. Murray, for respondent.
   Lehman, J.

The plaintiff is an unofficial stenographer, employed by a referee to take testimony at a reference ordered by a justice of the Supreme Court in an action then pending in which the defendant herein was the plaintiff. The order provided for a reference upon condition that the defendant in that action file an undertaking as security for the expenses of the reference, if the issues should be determined adversely to him, and that the costs of the reference be charged to the defeated party. The defendant in that action thereupon filed such undertaking; the reference was had and the referee determined the issues in favor of the plaintiff, the defendant herein. The plaintiff in this action was employed by the referee as stenographer and brings this action against the successful party, claiming the sum of twenty-five cents for every folio transcribed by her and the sum of five dollars for every hearing at which she was present but which was adjourned without taking any testimony.

The plaintiff was allowed to testify that it was a general custom among stenographers to charge twenty-five cents per folio for transcribing testimony at a reference; to charge two and one-half folios for every page of testimony, regardless of how many words are contained on each page, and to charge five dollars for every hearing adjourned without taking testimony. She also introduced in evidence the bill of costs which the defendant in this action had taxed as the successful party on the reference, said bill of costs containing an item of $244.90 for stenographer’s fees. It was, however, shown that this bill of costs and the judgment entered thereon were amended nunc pro tunc by an order made on the defendant’s motion but after the beginning of this action.

The trial justice, after considering this evidence, rendered judgment for the plaintiff for the full amount of the fees claimed for transcribing the testimony, but not for the fees claimed upon the adjourned hearings.

The plaintiff herein had a right to sue either party to the reference for her fees, because a joint and several promise to pay for the expense of the stenographer is implied by law against both parties to a reference through the acceptance of the stenographer’s services. Coale v. Suckert, 18 Misc. Rep. 76. ETor is this implied promise negatived by the terms of the order of reference charging the expense to the defeated party, unless it is shown that the stenographer knew of these terms before the reference. Thornton v. Tuttle, 20 Abb. N. C. 308. The learned trial justice, however, erred in finding that the bill of costs created an estoppel against the defendant. Leaving aside the question of the effect of the order striking out the .items nunc pro tunc, the bill of costs was taxed in an action wherein this plaintiff was not a party; nor is it shown that she has in any way acted upon the admission therein contained to her detriment. The bill of costs, however, properly admitted as an admission by the defendant of his liability, was certainly not conclusive against him. It appears that the plaintiff herein had already demanded this amount from him and it may well be that the defendant, at that time, had considered not the question of the amount of the bill but only his liability as one of the parties to the reference and, therefore, made his affidavit that he had incurred this expense. It is, however, probable that the trial justice, when he used the word “ estopped,” did not intend its technical meaning but correctly regarded this bill of costs only as an admission; because he bases his judgment also upon the plaintiff’s testimony as to the custom of stenographer’s charges and has deducted the amount of the charge for five attendances which, he says, she admits that she had no right to charge for. I can find no such admission upon the record and, in the absence of an admission on the record solemnly made by the plaintiff, the trial justice would be obliged to include this item, even though it appears that she had no right to make this charge, if he believed that the defendant was estopped by his bill of costs from disputing the' amount of the plaintiff’s bill.

Since the bill of costs did not constitute- a conclusive estoppel against the defendant, the judgment should be reversed, because there is no testimony of the value of the services except the testimony of the plaintiff as to stenographers’ charges. The Code of Civil Procedure has, in section 3311, fixed the rate to be charged by official stenographers in the Supreme Court at ten cents a folio. While it appears that an unofficial stenographer employed at a reference is not limited by this section which applies only to official stenographers (Varnum v. Wheeler, 9 Civ. Pro. 421), the court should view with suspicion the testimony of an interested party that a general custom exists of charging two and a half times this amount upon a reference. That such a custom exists among a large number of stenographers is probable; but to be material on the issues of this case, it must be a general and uniform custom. Since the plaintiff has been shown by the trial justice’s decision to have been mistaken in regard to her testimony as to the customary charges' upon an adjourned hearing, I am constrained to believe that she is mistaken in regard to the customary charge for transcribing the testimony. If, however, she is not mistaken in this testimony and such a custom exists and is general and uniform, then, I believe, this court should state absolutely and unequivocally that this custom is unreasonable and reprehensible and cannot be enforced; that, to sustain an implied contract to pay twenty-five cents a folio for transcribing testimony, the plaintiff must show that her services were reasonably worth such sum.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Gildersleeve and Seabuby, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  