Majority
p. 397SUPREME COURT. Richardson H. Thurman agt. Edward W. Fiske. Third District General Term, March, 1866. Before Miller, Hogeboom and Ingalls, Justices.
Headnote
Where the parties on a reference come before the referee, and agree orally that the referee shall charge for his services what he sees fit, they are estopped by the agreement from objection to his charges for over $3 per day, on the ground that the agreement was not in writing. The written agreement is waived.* Appeal by plaintiff from order of special term denying motion for retaxation of defendant’s costs. The. action was tried before a referee. On the first hearing, both the plaintiff and the defendant being present and in hearing, and the referee having been sworn and about to proceed with the trial, it was proposed by the counsel for the plaintiff that the referee should charge for his services whatever he saw fit, to which the defendant then and there acceded. . The referee reported in favor of the defendant, and charged for his services more than $3 per day. The defendant paid the referee’s fees on receipt of the report, the plaintiff having given no notice of his intention to recall his agreement. The plaintiff now objects to all of the referee’s fees above $3 per day, on the ground that the agreement on the subject was not in writing.
J. A. Millard, for plaintiff.
Irving Browne, for defendant, argued,
1st. That the necessity for a written agreement was waived by the consent and agreement of the parties in open court, citing Keator agt. Ulster and Delaware Plank Road Company ( 7 How. Pr. Rep. 41 ).
2d.- That the provision of section 313 of the Code is merely directory, citing Foster agt. Bryan (26. How. Pr. Rep. 164).
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3d. That the plaintiff was estopped by the agreement and the defendant’s payment, without objection or notice of recall by the plaintiff, citing Dezell agt. Odell ( 3 Hill, 215 ).
All the judges concurring, order affirmed on first and third grounds above, with costs.