People v. Bank of Staten Island — 70 Misc. 637

Majority

p. 637

The People of The State of New York, Plaintiff, v. The Bank of Staten Island, Defendant. In the Matter of the Judicial Settlement of the Account of Joseph B. Mayer, Formerly Receiver of Said Bank of Staten Island. In the Matter of the Disputed Claim of Rubsam & Horrmann Brewing Company.

(Supreme Court, Albany Special Term,

February, 1911.)

Headnote

Reference — Compensation of referees—Statutory fees — In general — For what time allowed.

The time spent by a referee in going to and returning from the place where the hearings are held is not any part of the time actually and necessarily devoted to the hearing and determination of the questions presented to him, and he cannot be allowed compensation therefor.

Application by John 0. Davies to fix amount of his fees as referee.

Russell M. Johnston, for John C. Davies, referee.

Jellenik & Stern, for receiver.

An affidavit has been filed, verified by Hon. John C. Davies, showing itemized statement of disbursements incurred by him, as referee, between March 9, 1905, and January 15, 1911, amounting to $738.50.

An affidavit has also been presented, verified by Mr. Davies, showing that he- was actually engaged, sitting as referee at hearings held in the city of Hew York, in the above matters, twenty-five days, and that he was actually engaged in the examination and consideration of the various accounts of Joseph B. Mayer, receiver, and of the testimony taken upon the accounting, and concerning the disputed claim of Bubsam & ITorrmann Brewing Company, and in the examination of the various briefs and argument

p. 638

of counsel, and in preparing three reports as referee, thirty-one days, and also that he was engaged in going to and returning from the city of Hew York, forty-eight days.

The payment to the referee for services rendered during the days that he was traveling between his home and the city of Hew York is objected to by the attorney for the receiver.

It seems as if it could hardly be said that such days were actually and necessarily devoted to the hearing and.determination of the questions presented to the referee.

The fees which are to he allowed herein are under the authority of People v. Bank of Staten Island, 132 App. Div. 589 , in the discretion of the court, and are not governed and. limited by section 3296 of the Code of Civil Procedure.

In the exercise of that discretion, I think it is proper that the referee should be allowed $30 per day for fifty-six days in which he was engaged in the actual hearing and determination of the questions which came before him, as referee, making $1,680.

His disbursements are allowed ai $136.25, making a total allowance for fees and disbursements of $2,416.25.

An order may he entered fixing the above amounts and directing the receiver to pay the same from the funds in his custody.

Ordered accordingly.