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Griggs v. Guinn

21 N.Y.S. 451 Court N.Y. Super. Ct. Decision date 1892-11-10 English

Delivered by GILDERSLEEVE, J.

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p. 451
GRIGGS v. GUINN.
(Superior Court of New York City, Special Term.
November 10, 1892.)

Headnote

1. Reference—Costs—Referee’s Fees. As Code Civil .Proc. § 3296, fixes the compensation of a referee, unless a different rate of compensation is fixed by consent or order, no stipulation for such fees can suspend the operation of the statute, unless it provides for a * specific sum.
-3. Same—Stenographer’s Fees—Implied Repeal of Statute. Laws.1892, c. 185, amending Code Civil Proc. § 3256, relating to costs, by adding°a provision that stenographer’s fees for minutes of testimony before a court, judge, or referee may be included, is abrogated by Laws 1892, c. 592, which also amends section 3256 “so as to read as follows,” etc., and leaves out the provision for stenographer’s fees, though it did not specifically repeal chapter 185; and such fees cannot he taxed, against the opposition of counsel.
Action by A. Irving Griggs against Sarah R. Guinn for an injunction. A temporary injunction having been granted and afterwards dissolved, defendant procured the appointment of a referee to determine her damages, and motion is now made to confirm his report. Report modified.
Benjamin Estes, for plaintiff.
Frederick W. Peabody, for defendant.

The report of the referee herein should be modified as follows: First, by reducing counsel fee on reference from $75 to $50; second, the stipulation entered into in respect to referee's fees is too indefinite to be operative. No stipulation can suspend the operation of the statute, except it provides for a specific sum. Griggs v. Day, (Super. N. Y.) 18 N. Y. Supp. 796 ; Bank v. Tamajo, 77 N. Y. 476 . The affidavit of the referee states that he spent 12 days in the business of the reference. The compensation fixed by the statute is $6 per day, unless a different rate of compensation is fixed by consent or order. Code, § 3296. It therefore follows that the referee is entitled to $72. His fee must be reduced from $150 to $72.

By chapter 185 of the Laws of 1892, section 3256 of the Code of Civil' Procedure was amended by providing that stenographer’s fees for minutes of testimony before a court, judge, or referee could be included in the taxable costs; but this chapter of the Laws of 1892 is clearly abrogated by a subsequent chapter, to wit, chapter 592 of the Laws of 1892, which also amends section 3256 of the Code, but leaves out the provision for stenographer’s fees, although it does not specifically repeal chapter 185 of the Laws of 1892.[1] Hence I know of no authority that authorizes the stenographer’s fees to be taxed as a disbursement in this proceeding against the opposition of counsel. Apparatus Co. v. Sargent, 43 Hun, 154 . It therefore follows that.the sum reported by the

1 Code Civil Proc. § 3256, relating to the disbursements to be included in the bill of costs, was amended by Laws 1892, c. 185. by adding a provision that stenographer’s fees for minutes of testimony before a court, judge, or referee could be included. Laws 1892, c. 592, did not refer to chapter 185, but amended section 3256 of the Code “so "as to read as follows,” etc., and left out the provision for stenographer’s fees.

p. 452
referee as stenographer’s fees must be disallowed. The aggregate damages sustained by the defendant must be held to be $172. Thus modified, the report of the referee is confirmed.

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