Anonymous — 8 N.Y. Super. Ct. 596

Majority

p. 596

Anonymous.

Headnote

A fee of $10, not to be allowed for each time that a cause is noticed before a referee.

At Chambers, October, 1852. Costs. The plaintiff had obtained a judgment upon the report of a referee and claimed upon the adjustment of costs, before the clerk, $10 for each time

p. 597

that the cause had been noticed for a hearing. The clerk had refused to make the allowance, and by the consent of the attorneys the question was referred to the decision of the judge at chambers.

It was insisted on the part of the plaintiff that the rejected charge, if not justified by the letter, was within the spirit and meaning of subdivision 8, in § 307 of the Code, which gives $10 to either party for any circuit or term at which the cause is necessarily on the calendar, and is not reached, or is postponed ; and the counsel quoted and relied on the case of Benton v. Bugnall( 1 Code, R. N. S. 229), as an express decision.

With all possible respect for the judge who made the decision that has been cited, it is impossible for me to follow it. I cannot say that a day, appointed for a hearing before a referee, is a circuit or term, general or special, or that his private docket, if he keeps any, is a calendar. In order to meet a supposed equity, I cannot stretch a statutory provision to a case which its terms cannot, without violence, be made to embrace. If there is a casus omissus-, the Legislature must supply it.

Even were the terms of the Code so ambiguous, that by a possible construction they might cover the rejected charge, I still should bé very unwilling to allow it. Proceedings before referees, as usually conducted, are sufficiently protracted and expensive, and it is not at all desirable to increase the temptations to delay. I must affirm the decision of the clerk.

Oaklet, Ch. J., and Bosworth, J., concurred.