The Topia Mining Co. v. Warfield

Page, J. Shortly after the commencement of the hearings before the referee, the parties stipulated upon the record that the statutory fee of ten dollars be waived,and that the referee receive ten dollars per hour or fraction of an hour in each session, the costs to be taxed by the successful party against the other. After the reference had proceeded for a year and a half, the referee wrote to the attorneys for the respective parties, requesting each party to send him five hundred dollars on account of his fees. The plaintiff complied with this request and promptly sent his check for that amount to the referee. The defendant declined, calling attention to the fact that the stipulation called for the referee’s compensation to be paid by the successful party. Upon' inquiry, the referee informed the defendant’s counsel that the plaintiff had made the payment, requested. Thereupon the defendant makes this motion for the removal of the referee. On the hearing the court suggested that, as a large amount of testimony had been taken, the parties should stipulate that the testimony so far taken should stand, hut not the rulings of the referee; and decision of the motion has been withheld to enable such a stipulation to he made. It appears, however, that the parties have been unable to agree. The referee, at the time he requested a payment on- account, had no right to his fees. It is well settled that, under ordinary circumstances, a referee’s right to fees does not accrue until he has completed the reference and filed or delivered his report. Hebard v. City of New York, 137 App. Div. 752, and cases there cited. The stipulation in this case expressly provided that they were to he paid by the successful party, thus clearly showing that they were not payable until the final determination of 'the reference. The request for the payment put the defendant in an embarrassing and disadvantageous position. While it may he that the referee could, as he claims, fairly determine the questions uninfluenced by the fact that the plaintiff had complied with his request and the defendant had not, it cannot he said that others may not fairly doubt it. Ho -such doubt should he allowed to exist in the ahao^lutely fair and unbiased judgment of a judicial officer. It would be manifestly improper to compel the defendant to [177] proceed and submit his case to the determination of this referee. The motion will, therefore, be granted, the referee removed, and Edward Sandford, of 26 Exchange place, appointed referee in his place and stead. Mo costs. Settle order on notice. Motion granted.