
    Clark R. Griggs, App’lt, v. Melville C. Day et al., Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 11, 1892.)
    
    Reeebee—Fees—Stipulation.
    A stipulation that the referee “may charge such fees as he deems proper ” is invalid. The rate of compensation must be fixed by the stipulatian under § 3396 of the Code.
    Appeal from order of the Mew York superior court, general term, affirming order affirming taxation of costs.
    
      Calvin Frost, for app’lt; Wm. R. Bronk, for resp’ts.
    
      
       Affirming 46 St. Rep., 533.
    
   Gray, J.

When the issues in this action came on for trial before the referee the parties consented to waive the statutory provision as to his fees; which consent was subsequently reduced to writing as follows: “ that the referee shall not be limited to the statutory fee of six dollars per day for his services in this case; but may charge such fees therefor as he deems proper.” The plaintiff paid to the referee, upon taking up his report, the sum of $7,500 fixed by him as his charge; but upon the taxation of costs, objection being made by the defendant to its allowance, the clerk disallowed the item. The court below has felt bound by authority to sustain the clerk’s ruling, and we are constrained to affirm the order. It does not appear that the referee’s fees were unwarrantable, upon any ground connected with the litigation. We are permitted to assume that they constituted a fair compensation for the services rendered; the objection to them being rested upon the sole grounds that the stipulation was not made “ at or before the commencement of the trial ” and that the rate of compensation” was not fixed by the stipulation.

The first ground of objection we regard as frivolous. If parties agree, as they did agree here, in the commencement, to waive the statutory provisions and, subsequently, during the trial the agreement is entered upon the referee’s minutes, or otherwise reduced to writing, the waiver is sufficient in such respects.

The second ground of objection, however, is within a decision of this court, in the case of The First National Bank v. Tamajo, 77 N. Y., 476, and must be sustained. It is true that that decision was upon the provision in the former code, and, also, that the precise point raised by that appeal was the sufficiency of an oral agreement to take the question of the referee’s charges out of the statute. But the present Code provision (§ 3296) equally requires the “ rate of compensation ” to be “ fixed by the consent, of the parties; ” and, with respect to the construction to be attached to the whole section, the opinion in the Tamajo case was too comprehensive and deliberate to be now disregarded. It undoubtedly was the intention of the learned judge, in delivering the opinion of the court, to carefully lay down a rule to be followed in all eases and, hence, he considered the subject in the light of the language made use of in the Code and of the general policy of the law. He held that an agreement in writing which did not fix any rate of compensation, but left it to the referee to make, was not charging the prescribed rate of compensation in the mode specified by the Code, and he reasoned that such an agreement was contrary to the general rule that costs should “ not depend as to amount upon the discretion of any court or officer.” In the present case the defendants have sought to escape upon a purely technical objection from the effect of a written stipulation, which it was their duty to recognize and which the promptings of a moral and an honorable sense should have impelled them to abide by. To hold them, however, to the Stipulation, would compel us to run counter to the previous decision of the court, and as stability of decision is rather to be preferred as a rule in the admininsbration of justice we should not, for an occasional instance of hardship in the application of the established rule, be moved to swerve from it. The order should be affirmed.

Order affirmed, with costs.

All concur.  