Bottome v. Neeley

Houghton, J.: The respondents were administrators of the goods, chattels and. credits of one Agnes C. Taylor, deceased, and had given a bond as such in the sum of $200. Thereafter a proceeding was begun in the Surrogate’s Court to compel them to file an additional bond. On this proceeding the surrogate appointed a referee to take evidence and report liis opinion thereon. On the hearing before the referee a stenographer was employed, and at the beginning of the hearing a stipulation was entered into between the parties, taken down by the stenographer, to the effect that the stenographer, naming him, be employed and that he furnish copies of the minutes at a stipulated rate, with a stipulated per diem allowance, and with the further provision that his fees and allowance “ be made part of the referee’s fees and paid out of the estate on the taking up of the referee’s report.” The hearing proceeded to its termination and the referee failing to file his report within the sixty days prescribed by section 1019 of the Code of Civil Procedure, the administrators served notice, as prescribed by that section and section 2546 of the Code, that they elected to terminate the reference. Some ten months thereafter, and after assignment by the referee and stenographer of their claims to this plaintiff had been made and this action begun, the referee filed his report, showing that the administrators had in their hands the sum of $250, and hence that their bond ought to be made $500, his fees being $150 and those of the stenographer $338.25. This report was never acted upon by the surrogate, nor was there any allowance of the fees charged. The plaintiff recovered a judgment against the respondents personally in the Municipal Court and on their appeal the Appellate Term reversed the same and ordered a new trial. (54 Misc. Rep. [602] 258.) An order was made permitting the plaintiff to appeal to this, court, and it was perfected by giving the usual stipulation for judgment absolute in case of affirmance. .We are of the opinion .that the order of reversal was proper and should be affirmed. Ordinarily in any litigation by or against executors or administrators where they employ counsel'or stenographers they are personally liable, not withstanding, the litigation is for the benefit of the estate and is prosecuted or defended in their i;epresentative capacity. This is so because they have no power to bind - the estate by any affirmative contract which they may make with respect to it. A person may, however, bargain hot to hold the administrator or executor personally and to look to the' estate only, or to such allowances as may be made in the action or proceeding. for his compensation. In the proceeding ordered by the surrogate the estate had been alleged to be only $100 in amount. It was sought to show that it was larger and the reference was for that purpose. At'the beginning of the hearings it was stipulated that whatever the referee’s fees should be they should be payable out of the estate. The referee could make such a bargain'if he saw fit. Even though the administrators had no power to bind the estate,' they did have power to contract with the referee that he should look to the estate for his compensation and not to- them- individually.' The same is true of the stenographer. The referee sat by and heard the stipulation and presumably acquiesced in it. The stenographer took it down, and if he did not choose to continue his employment on those conditions it was his privilege to protest and obtain some other arrangement as to his fees or withdraw from the case. He was not an official stenographer compelled to attend but could do as he saw fit. Both the referee and the Stenographer must be presumed to- have acquiesced in the stipulation and to have performed their services in accordance with it. The proceeding resulted in the discovery of $150, making a total estate of $250 only. The aggregate amount of the referee’s and stenographer’s fees is nearly twice the gross estate. The expenses-of the hearing were subject to approval and allowance by the surrogate, and in the absence of an express agreement to pay, did not become a fixed charge against the estate or the [603] administrators until they were passed upon and allowed by him. The report has never been confirmed nor has any allowance been made. It is very problematical if the surrogate would ever allow the fees at any such sum as charged'. It does not change the sitúa-' tion that plaintiff has brought his action on quantum meruit. By an action in such form he cannot escape the express bargain which his assignors made. . ■ In addition, the referee failed to file' his report within, the time prescribed by law, and such failure forfeited. his rights to any fees whatever. Such is the express provision of sections 1019 and 2546 of. the Code. The stenographer by the stipulation which he acquiesced in consented that his fees be made a part of the referee’s fees. If the referee by his own act forfeited his fees then the stenographer’s fees, which formed a part of them, were forfeited as well. They could not survive when the fees themselves were lost and his remedy is against the referee rather than these defendants. As a general rule, in. the absence of a stipulation or contract, parties to a litigation are liable to the referee and stenographer for their services. The rule is not so inflexible, however, that it cannot be varied by express contract or by a stipulation which amounts to the same thing. We are of the opinion that the plaintiff’s assignors had no claim against the respondents personally, and that the Appellate Term properly reversed the judgment in plaintiff’s favor. The order should be affirmed, with costs, and judgment absolute directed against plaintiff upon his stipulation. Patterson, P. J., and McLaughlin, J., concurred; Laughlin and.Scott, JJ., dissented.