Burt v. Oneida Community, Ltd.

Hardin, P. J. I think the facts presented upon the motion for taxation are such that this case is distinguishable from those eases cited in the opinion of Brother Martin. Here, in addition to the stipulation entered in the referee’s minutes, there is a formal stipulation of the parties confiding the amount to be charged to the referee. The parties acted upon that stipulation. The successful party, having in mind that stipulation when the amount of fees were stated by the referee, relied upon the stipulation, and paid the same to him. It is a familiar principle that a party may waive a constitutional provision or a statutory provision in his own interest or benefit or protection. Evidently the parties intended that the referee should, in his performance of his duties as referee, be paid such sum as he deemed reasonable for his services as a referee. It is not too much to say that the referee performed the services upon the reliance of the stipulation so given. It is not too much to say that the party who paid the sum to the referee, after he had fixed it, relied upon the stipulation. The facts and circumstances disclosed are such as to indicate that no public policy was violated either by the referee or by the parties. Under the circumstances disclosed, I hesitate to come to a conclusion that shall disregard the action of the parties and the referee. The [807] party who paid the fees of the referee, having relied upon the stipulation of his adversary, it seems to me, ought to be protected by an allowance of the sum so stated, fixed, and determined by the referee in accordance with the assent of the defeated party, coupled with the approval of his attorney and counsel. I do not therefore favor a reversal of the order of the special term. Order affirmed, with $10 costs and disbursements. Merwen, J., concurs.