
    Charles A. Burt, App’lt, v. The Oneida Community. Limited, et al., Resp'ts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 20, 1891.)
    
    ■Costs—Referee’s fees—Stipulation.
    Where the parties to an action have stipulated that the referee might fix his own fees without regard to the provisions of the statute, and the successful party, in reliance thereon, has paid to the referee the amount so fixed by him, he will be protected by an allowance of the sum so paid, in the absence of proof that it was excessive, unreasonable or improper.
    (MabtiN) J., dissents.)
    Appeal from an order of the Oneida special term sustaining a taxation of $500 for the fees of a referee. Upon the hearing before the referee a stipulation was entered in his minutes to the effect that the referee might fix his own fees; and thereafter a stipulation was signed by the parties in the following language : “ It is hereby stipulated that the referee in this action may fix the ■amount of his fees without regard to the provisions of the statute. Dated July 10,1889.” This stipulation was signed by the parties "to the action and also by their attorneys. The trial was a long •one and some 237 pages of evidence was taken by a stenographer. There is no proof indicating that the amount charged by the referee was excessive, unreasonable or improper in its extent There is proof that the sum has been paid to the referee by the successful party relying upon the stipulation made by the attorneys and by the parties.
    
      J. & Q. Van Voorhis, for app’lt; W. G. Tracy, for resp’ts.
   Hardin, P, J.

I think the facts presented upon the motion for taxation are such that this case is distinguishable from those cases cited in the opinion of Brother Martin. Here, in addition to the stipulation entered in the referee’s minutes, there is a formal stipulation of the parties confiding the amount to be charged by the referee. The parties acted upon that stipulation; the successful party, having in mind that stipulation when the amount-of fees were stated by the referee, relied upon the stipulation and paid the same to him. It is a familiar principle that a party may waive a constitutional provision or a statutory provision in his own interest or benefit or protection. Evidently the parties intended that the referee should, in his performance of his duties as referee, be paid such sum as he deemed reasonable for his services as a referee. It is not too much to say that the referee performed the services upon the reliance of the stipulation so given. It not too much to say that the party who paid the sum to the referee after he had fixed it, relied upon the stipulation..

The facts and circumstances disclosed are such as to indicate that no public policy was violated either by the referee or by the parties. Under the circumstances disclosed I hesitate to come to a conclusion that shall disregard the action of the parties and the referee. The party who paid the fees of the referee having relied on the stipulation of his adversary, it seems to me ought to be protected by an allowance of the sum so stated, fixed and determined by the referee in accordance with the assent of the defeated party coupled with the approval of his attorney and counsel. I do not, therefore, favor a reversal of the order of the. special term.

Order affirmed, with ten dollars costs and disbursements.

Merwin, J., concurs.

Martin, J., (dissenting.)

Appeal from an order affirming the-taxation of costs by the clerk of Madison" county which included the sum of $500 for referee’s fees. The question on this appeal relates only to that item. There was a stipulation in this case, signed by the parties and their attorneys, that the referee might fix the amount of his fees without regard to the provisions of the statute. On the taxation before the clerk there was no proof showing the number of days the referee whs engaged in the trial of the case or in the examination of it.

Where opposition is made on taxation of costs to the disbursements for referee’s fees, the charge should be supported by affidavit The number of days necessarily spent in the business of the reference should be thus shown. The general affidavit of disbursements is not sufficient Shultz v. Whitney, 9 Abb., 71; 17 How, 471; Brown v. Windmuller, 36 Supr. Ct. Rep. (J. & S.), 75; 14 Abb., N. S., 359; Watson v. Gardiner, 50 N. Y., 671.

The Code of Civil Procedure provides that a referee is entitled to six dollars for each day spent in the business of the reference, unless a different rate of compension is fixed by the consent of the parties manifested by an entry in the minutes of the referee ■or otherwise in writing. Section 3296. By the stipulation in this -case no rate of compensation was fixed. It was left for the referee •to fix his own compensation. The stipulated consent was not in conformity with the statute and was insufficient to justify the clerk in taxing the referee’s fees at that amount. Bank of Cooperstown v. Tamajo, 77 N. Y., 476.

In the case cited, Andrews, J., said: “The agreement to leave it to the referee to make such charge as he deemed reasonable, left the whole subject open and indefinite. It did not fix any rate of compensation. It simply left it to the referee to determine and hx the value of his own services, each party impliedly assenting to be bound by his decision. To hold that the agreement in question was an agreement fixing a rate of compensation would not be justified by any fair interpretation of the transaction. The attorneys in the case, by their agreement, put upon the referee a responsibility which the statute places upon the parties themselves. If, in view of the importance of the case, or the character and standing of the referee, counsel deemed the rate of compensation fixed by the statute to be inadequate, they could agree upon a larger rate. One of the parties to the action would be compelled in the end to bear the increased expense of the litigation in consequence of such agreement. It is but just to clients that agreements made by counsel which may enhance the burden and costs of litigation should be made upon their judgment and professional responsibility, and the attempt in this case to impose an indefinite responsibility upon the parties to the action, depending upon the decision and judgment of the referee in a matter in respect to which he had a personal interest, ought not to be sanctioned. The statute,'wisely, we think, requires a formal written agreement between the parties before either can be subjected to the payment of referee’s fees beyond the prescribed rate. There is no ground for questioning the bona fides of the counsel or the referee in respect to the transaction. But the question is whether the agreement made was in conformity with the statute, and we think it was not. The statute mating compensation to referees beyond the statute rate to depend upon a written agreement between the parties fixing such increased rate, is in harmony with "the general policy of the law that costs, when allowed, shall be according to a fixed and definite rule and shall not depend as to amount upon the discretion of any court or officer.”

The doctrine of the Tamajo case was also recognized in Mark v. City of Buffalo, 87 N. Y., 184, 188, where Judge Finch said: “ In that case we decided that, the attorneys could not agree to leave the referee to fix his own rate of compensation, but, if an agreement is made at all for a larger rate, it should be made upon "the ‘ judgment and professional responsibility ’ of the counsel,’ who could agree upon a larger rate.’ ” See, also, Chase v. James,, 16 Hun, 14; Estate of Gilman, 12 Civ. Pro. R., 179: 10 N. Y. State Rep., 184.

It seems to me that the authorities cited clearly establish that the stipulation in this case was invalid, as it did not fix any rate of compensation to be paid the referee; that the respondent, was not entitled to have the referee’s fees taxed at the amount-allowed by the cleric, and that the special term erred in denying the plaintiff’s motion. These considerations lead me to dissent from the opinion of my brother, Hardin, in this case.  