
    Charles W. Hassler, as Trustee, etc., App’lt, v. Henry D. Turnbull, Resp’t.
    
      (New York Superior Court, General Term,
    
    
      Filed February 6, 1888.)
    
    Referee — Making payment of fees condition of granting motion i$ error—In the absence of bad faith does not call for setting ASIDE OF REPORT.
    A stipulation was entered into between the parties to 'this action and the-referee appointed therein whereby the parties agreed each of them to pay the referee’s fees for the proceedings taken by him during the action. The plaintiff rested without having paid the fees due from him. Thereafter he moved to re-open the case to introduce further testimony. The' referee refused to grant the motion except on payment of his fees. Held, that though it was error to make the payment of the fees the condition of granting the motion, yet there being no evidence of had faith, bias or corruption, it did not call for the setting aside of the report and vacating the order of reference.
    Appeal from an order denying the plaintiff’s motion to . set aside the report of a referee and for a new order of reference.
    
      J. B. Sabine, for app’lt; W. S. Pinckney, for resp’t.
   Sedgwick, Ch. J.

On the affidavits, it must be held that it was understood that each party should pay fees for the proceedings taken by such party, during the proceeding. In June, 1885, the plaintiff rested without having paid the fees due by him. The amount was $105. In June, 1880, the defendant having taken no proceedings, the plaintiff moved to open the case, to introduce further testimony. The referee refused to grant said motion, unless the plaintiff would pay the fees that had accrued, and which the plaintiff had promised to pay. Thereafter, the plaintiff and defendant consented to close the case. It was_ submitted. The referee’s report dismissing the complaint, was filed. Before judgment was entered, the motion below was made to set aside the report and vacate the order of reference, on the ground that the conduct of the referee in refusing to re-open the case, was improper. The affidavit in support of the motion averred that there had been no understanding that each side should pay the fees during the progress of the case. The determination of the learned judge, that there was such an understanding, should not be reversed.

It may be granted that the referee should not make it a condition of deciding in favor of the plaintiff, that fees due by the latter should be paid, even if the referee would be justified in refusing to hear the motion for non-payment of fees. It does not, however, appear that at the most, the referee’s action was other than erroneous. There may be a question as to whether there was not error. There is no evidence of bad faith, or bias, or corruption. If there were only error, the remedy claimed below of setting aside the report and of vacating the order of reference, was misappropriate, and the learned judge was right in his decision.

Order affirmed, with ten dollars costs.

Freedman and Ingraham, JJ., concur.  