
    George Brush, Respondent, v. William H. Kelsey and Others, Appellants.
    
      Referee—proceedings to compel him to file his repoi’t in supplementa/ry. proceedings— when it is not proper to determine his fees thereon — to what fees he is entitled.
    
    On a motion by a judgment creditor to compel a referee in supplementary proceedings instituted under the creditor’s judgment to file a report, which motion is resisted by the referee on the ground that his fees have not been paid, the amount of the fees to which he is entitled cannot be adjudicated where neither party requests such an adjudication.
    The referee is, under section 3296 of the Code of Civil Procedure, entitled to charge for his attendance on days previously appointed for a hearing, although no testimony is taken nor any proceedings had on such days except to apply to the referee for and obtain from him a postponement of the hearing.
    
      Semble, that the rule would be otherwise if the postponements were applied for before the day set for the hearing.
    The referee may also charge for a reasonable number of days appointed for witnesses to sign and swear to their testimony; the remedy for the failure of a witness to attend at the proper time without reasonable excuse is by a motion to punish him for contempt, and not by an indefinite renewal of appointments at the judgment creditor’s expense.
    Appeal by the defendants, William H. Kelsey and others, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 9th day of May, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day. of May, 1899, denying the defendants’ motion for a new trial made upon the minutes.
    
      Horace Andrews, for the appellants. .
    
      J. Stewart Ross, for the respondent.
   Per Curiam :

This action is brought to recover for services rendered as referee in taking examinations in proceedings supplementary to execution. The plaintiff’s claim was for twenty-eight days’ service, at $10 a day, amounting to $280. The defendants answered that the plaintiff was not entitled for Ms services to more than $140, and that his fees had been, taxed at that sum hy a justice of this court; that $50 had been paid on account thereof and that they had tendered the remaining $90, which sum they were still ready and willing to pay. The payment of $50 was conceded. The jury found a verdict for the sum of $150. From a judgment entered on the verdict, and from the order denying the defendants’ motion for a new trial, this appeal is taken.

As to the plea of former adjudication, the following appear to be the facts: A dispute arose between the defendants and the plaintiff as to the amount of his fees. The plaintiff declined to file his report and the examination of the witnesses taken before him unless his claim was paid. Thereupon, on an affidavit of the attorney for the judgment creditor, a motion was made to compel the referee to make and file his report. This was resisted by the plaintiff on the ground that his fees had not been paid. The motion was heard before Mr. Justice Ward, who indorsed on the papers “ motion granted, and fees of referee taxed as per memorandum.

“ F. A. W.,

“J. & OP

The. accompanying memorandum, signed in the same manner, after discussing the facts, fixed the referee’s fees at $140, of which $50 had been paid, leaving a balance due the plaintiff of $90. Ho formal order was ever entered in the matter, and two days after-wards the official term of Mr. Justice Ward expired. The defendants contend that by- the filing of the memorandum and indorsement, the amount due the plaintiff was fixed at $90, and that the determination of Justice Ward is conclusive in all other litigations between the parties. The learned trial judge overruled this claim on the ground that no order had been entered on Justice Ward’s decision. We do not think it necessary to determine this question, nor whether, the decision having been made, the clerk might liot properly, at any time thereafter, enter a formal order upon it, though the judge was out of office. Ho such order was, in fact, entered, nor could an order adjudicating the amount of the referee’s fees have been properly made on the motion. The only application made by the judgment creditor was to compel the referee to file his report. Heither party applied for. a taxation of.the referee’s fees. The ruling of the trial court, therefore, in this, respect, was correct.

But we think the amount fixed by Justice Ward was the largest sum which under any proof in the case the jury should be permitted to award the plaintiff. There were six actual hearings at which testimony was taken. There were two adjournments at which no testimony was taken. These postponements were not made until the meetings previously ajipomted for the. hearing. At these times the referee attended, and the applicaion for a postponement was then made to. him. These, we think, were propei’ly treated as days spent in the business of the reference, under section 3296 'of the Code of Civil Procedure. (Jones v. Newton, 33 N. Y. St. Repr. 823.) Had the postponements been made in advance of the time set for the hearing, the- rule would have been different. (Mead v. Tuckerman, 105 N. Y. 557.) The plaintiff testified that he spent one day in making his report, and one day in certifying certain exhibits produced.in evidence. This makes ten days’ service. The remainder of the plaintiff’s claim is for attendance on eighteen days for the purpose of having the- witnesses sign and swear to their examinations, the testimony having been taken by a stenographer and subsequently written out in longhand. We think this claim utterly unreasonable. The referee testifies that many appointments were made for the witnesses to attend, at which they failed to appear, and thus the making of new appointments was necessitated ; but for this neither the judgment creditor nor his attorney was in any way responsible. The plaintiff might be allowed for reasonable time set for the attendance of witnesses, ■ but if any of them failed to attend at the proper time without rea-' sonable' excuse (of which there is no proof given in this case), the remedy was not to- indefinitely renew appointments at the judgment creditor’s expense, but to punish them for contempt. Eoui’ days’ fees would be the utmost limit that could be allowed for such service in this case. ■

The defendants made no valid tender to the plaintiff of any :amount, and, therefore, the latter was. entitled to recover in this action the'value of his services-.

The judgment should be reversed and a new trial granted, costs to abide the event, unless the plaintiff elects to reduce his recovery of ■damages to ninety dollars, in which case the judgment as reduced should be affirmed, without costs of the appeal to either party.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event, unless the plaintiff within twenty days stipulates to reduce the recovery of damages to ninety dollars. In case of such stipulation being made, the judgment as reduced arid the order are affirmed, without costs to either party. 
      
       This opinion was written by Mr. Justice Cullen before his designation as an associate judge of the Court of Appeals and is adopted by this court. The decision of the court was rendered after such designation was made.'
     