Gilbert v. Deshon — 40 N.Y. St. Rep. 799

Majority

p. 799

John W. Gilbert, Pl’ff, v. Henry S. Deshon et al., Def’ts.

(Supreme Court, General Term, First Department,

Filed October 16,1891.)

Headnote

Costs—Referee’s and stenographer’s fees.

Before referee’s and stenographer’s fees can he fixed and ordered paid; a statement showing the time occupied by the reference and the extent of the services of the stenographer should be required.

Appeal by defendant Margaret G. Westerfield from an order directing the payment of certain referee’s and stenographer’s fees out of certain moneys deposited with the chamberlain of the city of New York.

E. H. Westerfield, for app’lt; John A. Balestier, for resp’t.

The only evidence as to the time spent by the referee and the stenographer upon the reference was that contained in the affidavit of the defendant’s attorney that there were thirteen sessions lasting at no time more than one hour at which any substantial business of the reference was transacted or at which any thing was at all done, and that in the stenographer’s minutes 'there were 122 pages of matter equal to about 244 folios.

The referee does not state the number of days that he was engaged and there is no evidence that would justify the court in taxing the fees either of the referee or the stenographer at the amount directed to be paid to them. I think, therefore, that the court

p. 800

should either have denied the application or, if a larger amount than that justified by the statement of the defendant's attorney as to the time occupied by the reference was claimed, should have • required the referee to submit a statement showing the basis for his claim and for a charge for the services of the stenographer.

The order should therefore be reversed, with ten dollars costs and disbursements, with leave to renew the motion at special term upon further affidavits.

Yah Brunt, P. J., concurs.