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New York Mutual Savings & Loan Ass'n v. Westchester Fire Insurance

98 A.D. 285 Court N.Y. App. Div. English

Delivered by Willard Bartlett, J.:

Contents

Majority

p. 285
New York Mutual Savings and Loan Association, Appellant, v. Westchester Fire Insurance Company, Respondent.

Headnote

Referee — stipulation as to compensation, when insufficient.
The following entry made upon the stenographer’s minutes upon the opening of the trial of an action before a referee: “It is stipulated that the Referee shall not be confined to the statutory compensation, but may charge and be paid a reasonable compensation for the services performed,” is not sufficient to entitle the referee to greater compensation than the ten-dollar-a-day rate prescribed by section 3296 of the Code of Civil Procedure.
p. 286
Appeal by the plaintiff, the New York Mutual Savings and Loan Association, 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 Westchester on the Yth day of July, 1904, denying the plaintiff’s motion for a new taxation of the defendant’s bill of costs so as to disallow an item of $500 for referee’s fees as taxed therein.
Woodson R. Oglesby, for the appellant.
Ernest A. Cardozo [Michael E. Cardozo, Jr., with him on the brief], for the respondent.

The decision of the Court of Appeals in Griggs v. Day ( 135 N. Y. 469 ) constrains us to reverse the order appealed from in so far as it refuses a retaxation of the $500 allowed to the referee in this case.

According to the brief for the respondent the referee spent nineteen days in the business of the reference. He thus became entitled to receive $190 under the provisions of section 3296 of the Code of Civil Procedure, unless a higher rate of compensation was provided for by a stipulation made pursuant to that section. The stipulation relied upon as authorizing the allowance of $500 is the following entry which was made upon the stenographer’s minutes upon the opening .of the trial of the action: “ It is stipulated that the Referee shall not be confined to the statutory compensation, but may charge and be paid a reasonable compensation for the services performed.”

The stipulation in the case of Griggs v. Day (supra) was 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 Court of Appeals held that the language quoted omitted to fix the rate of compensation as required by section 3296 of the Code of Civil Procedure, and was, therefore, ineffectual to change the statutory rate which was then six dollars a day, but has since been raised to ten dollars. The objection on this ground to the enforcement of the stipulation was declared to be purely technical, Judge Gray saying that the promptings of a

p. 287
moral and an honorable sense should have impelled the defendants to abide by their agreement. Nevertheless the court unanimously refused to give effect to the stipulation on the ground that to do so would be to run counter to the previous decision in the case of First National Bank v. Tamajo ( 77 N. Y. 476 ), inasmuch as stability of decision, as a rule in the administration of justice, should not be abandoned on account of an occasional instance of hardship in the application of an established rule.

In view of this determination upon a precisely similar question to that involved here, by the court of last resort, we have no option except to reverse the order and direct a new taxation of the referee’s fees at the rate prescribed in section 3296 of the Code of Civil Procedure.

All concurred.

Order reversed, with ten dollars costs and disbursements, and new taxation of referee’s fees directed before the clerk.

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