First National Bank v. Tomajo

Headnote

Referee — fees of — must be fixed by mitten agreement — entry of agreement in minutes not sufficient.

Appeal from an order made at a Special Term, denying a motion for a readjustment of costs.

This cause was tried before a referee, and on the trial it was stipulated between the counsel for the respective parties “that the referee shall be entitled to a just and reasonable compensation for his services, the amount of such compensation to be fixed by himself; ” and the stipulation was entered on the minutes of the trial. The referee heard the cause, made his report and fixed his compensation at $575, which was paid to him by the prevailing party. The taxing officer allowed this sum in the bill of costs adjusted by him, and a motion was made at Special Term for a readjustment of the costs and to strike out the item. The motion was denied and an appeal has been taken from that order.

The court at General Term said: “It has just been held by the Supreme Court in the third department that an entry on the minutes of a referee of an agreement for his compensation beyond the legal rate is not sufficient, and that to be ■tfalid and effectual such an agreement must be signed by the parties or their attorneys. (Olíase v. James, N. Y. W. Digest, vol. 7, No. 18, p. 415; 8. Q., 16 Hun, 14 .) We are inclined to concur in this view.”