
    Benjamin E. Valentine, Appellant, v. C. Amory Stevens, as Trustee, Respondent.
    
      _Reference “ to take proof and report the same to the court” — supersededby.a reference “ to hear and determine ” in an action subsequently brought in which by stipulation the issues under the first order of reference are tried.
    
    In order to discharge a notice of Us pendens, filed in 1887 in an action for partition, the attorney of record for the plaintiff in such action, claiming a lien for his compensation, in 1903 entered into an agreement with the parties interested in the action whereby it was agreed that the action should be discontinued, and that the attorney’s lien for compensation for the services rendered in the partition' action should be transferred to a fund to be deposited with a trust company.
    The order of discontinuance provided that if the parties should fail to agree upon the amount of the attorney’s compensation within twenty days after the entry of the order “ it be and hereby is referred to Augustus C. Brown, counselor at law, who is hereby appointed sole referee' to take proof and report the same to the court with his opinion thereon as to what amount of costs, allowance and fees as attorney and counsel said plaintiff’s.attorney should be awarded.” ,
    .Subsequently, and before the referee had taken any proof in the matter, the attorney brought an action in which he sought to recover compensation for the .services rendered by him in the partition action and also for other services. 'The issues joined in the action were referred by consent to the referee named in the order discontinuing the partition action, with power “ to-hear and determine the same.”
    Upon the trial before the referee the parties stipulated in open court that the proceeding in the partition action for the ascertainment of the value of the attorney’s services “ be merged in the present action and that the issues in that proceeding be deemed a part of the issues in .this action, the determination of which shall determine the issues in that proceeding, and that the determination of this matter shall be deemed res adjudícala as to the previous proceeding."
    The referee found that the plaintiff was entitled to recover and to be paid out of the fund deposited for that purpose a certain sum for services rendered in the .partition action, and directed judgment to be entered to that effect; as to the other causes of action the referee’s decision was adverse to the plaintiff: An order was" subsequently made on the defendant’s motion vacating the judgment entered on the report of the referee and recommitting the report to the referee, with directions "to separate such report into two parts, one of which should be made pursuant to the order of reference made in the action for services. and the other pursuant to the order of reference contained in the order discontinuing the partition action.
    
      The order in question was made upon the theory that, under the order of reference made in the partition action, the referee had authority only to 1 ‘ take proof and report the same to the court with ¿is opinion thereon ” and not to “ hear and determine.”
    
      Mela, that this view of the matter was erroneous, and that the order should be-reversed and the defendant remitted to his right to appeal from the judgment entered upon the referee’s report;
    That the defendant had deliberately waived his rights under the first order of reference by the stipulation made upon the trial before the referee, and that he could not, after a decision adverse to him,, repudiate the stipulation.
    Appeal by the plaintiff, Benjamin E. Valentine, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Nassau on the 12th day of January, 1903, vacating a judgment entered herein on the 27th day of December, 1902, upon the report of a referee.
    
      B. E. Valentine, for the appellant.
    
      George D. Beattys, for the respondent.
   Woodward, J. :

The defendant executed a contract for the sale of certain real property in the city of New York to which he held the record title as trustee. A search of the title by the purchaser disclosed an uncanceled lis pendens filed in the year 1887 in the partition action of Wood v. Simonson, in which the plaintiff in this action was. attorney of record for the plaintiff. The plaintiff claimed a lien on that cause of action as security for an amount alleged to be due him as compensation for services rendered as attorney, and that the action was still pending on February 15, 1902. On that day, to enable the defendant to convey a clear title under his contract, an order was entered with the plaintiff’s consent discontinuing the partition action and directing the clerk to cancel the lis pendens. In consideration of the plaintiff’s consenting to -the discontinuance of that action a written agreement was entered into between the plaintiff and the defendant and certain other parties in interest whereby it was agreed that a fund sufficient to cover all claims of the plaintiff against the owners of the property should be deposited with a trust company, and that whatever lien the plaintiff might have on the cause of action so discontinued should attach with equal force to the fund. The order of discontinuance contained this provision:

And it is ordered) that in case the parties to this action fail to agree upon the amount of said compensation within 20 days after the entry of this order, it be and hereby is referred to Augustus 0. Brown, counselor at law, who is hereby appointed sole referee to take proof and report the same to the court with his opinion thereon as to what amount of costs, allowance and fees as attorney and counsel said plaintiff's attorney should be awarded.”

Subsequently, and before the referee had taken any proof in the matter, this action was brought. The complaint sets forth as one cause of action the facts of the plaintiff’s claim for compensation in the partition action ; and, separately, facts alleged to constitute causes of action for other services. The issues joined were referred by consent to the referee named in the order discontinuing the partition action to hear and determine the same.”

Upon the trial before the referee the following stipulation was made between the parties and entered in the minutes: A proceeding having been heretofore taken in the case of Carrie M. Wood against Alfred Simonson and others, for the ascertainment of the value of the services of Hr. Benjamin E. Valentine, and such matter having been referred to the present referee, said proceedings having been taken prior to the commencement of the present action of Benjamin E. Valentine against C. Amory Stevens as Trustee, it is stipulated in open court that. the first proceeding be' merged in the present action and that the issues in that proceeding be deemed a part of the issues in this action, the determination of which shall determine the issues in that proceeding, and that the determination of this matter shall be deemed res adjudieata as to the previous proceeding.” The referee found that the plaintiff was entitled to recover, and to be paid out of the fund deposited for that purpose the sum of $540 for services rendered in the partition action; and the report directed judgment to be entered in the plaintiff’s favor for that amount, with interest and costs. As to the other causes of action alleged in the complaint, the referee’s decision was adverse to the plaintiff.

An order was subsequently made on motion of the defendant at Special Term, vacating the judgment entered on this report, and directing that the report be recommitted to said referee, and said referee is hereby directed to separate said report into two parts or reports, and to make and deliver one report in the action herein pursuant to the order of reference to hear and determine all issues involved, and to make and deliver the other report in compliance with the terms of the order of reference made by Mr. Justice Beach on the 15th day of February, 1902, in the partition action wherein Oarrie M. Wood is plaintiff and Alfred L. Simonson and others are defendants, directing said referee to take proof and report the same to the court with his opinion as provided for in said order.” From this order the plaintiff appeals. ■ • •.

In granting this order the learned court at Special Term evidently proceeded on the theory that the powers of the referee in the premises were limited by the order of February 15, 1902, discontinuing the partition action and directing the canceling of the Us pendens; that, as to the claim of the plaintiff for compensation for services rendered in the partition action, the referee had authority only to “ take proof and report the same to the court with his opinion thereon,” and not to “ hear and determine.” We believe this view of the matter was erroneous, and that the order should be reversed and the defendant remitted to his right of appeal from the judgment entered on the referee’s report. The correctness of this conclusion seems too obvious to require extended comment.

The agreement pursuant to which the order discontinuing the partition action was entered plainly contemplated an action to determine the amount due the plaintiff for services rendered in such action. This action was promptly brought for that purpose and an order of reference “to hear and determine” all the issues joined was entered by consent. As if for the very purpose of forestalling ■ the contention here made by the defendant, a stipulation was made at the trial and entered in the minutes, expressing- in unmistakable terms the agreement of the parties that the issue involving the plaintiff’s claim in the partition action should be determined by the referee with precisely the same degree of finality as the other issues. If it could be conceded that any doubt remained on the subject after the entry of the order of reference “ to hear and determine,” the stipulation makes the intention of the parties, clear beyond reasonable controversy. The language is explicit. The defendant 'deliberately waived his rights under the first order of reference. He cannot, after a decision adverse to him, repudiate his stipulation and claim the benefit of whichever of two inconsistent orders he may deem most to his advantage. Having answered the complaint in this action, consented to a reference to “ hear and determine ” all the issues raised by the pleadings, made a stipulation On the record that the second order of reference should supersede the first — for such was its effect — the only proper recourse of the defendant, if he deemed himself aggrieved, was to appeal from the judgment entered on the referee’s report. By following the practice prescribed in section 1022 of the Code of Civil Procedure the defendant’s rights could be fully preserved, and this court could then review the merits of the controversy, to which so much attention is given in the briefs submitted on this appeal.

The order should be reversed.

Goodrich, P. J., Bartlett, Jenks and Hooker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.  