Opinion
April 22, 1910.
Theodore Connoly, for the appellant.
Edward W.S. Johnston, for the respondent.
This is an appeal from an order granting a retaxation of costs. The action was referred, by consent, to a referee, who died after holding a number of sessions, but who had not at the time of his death completed the reference or made a report. Thereafter defendant moved for leave to amend its answer and was permitted to do so, upon payment of taxable costs. The plaintiff attempted to tax as part of the costs a fee for the deceased referee, which the clerk refused to tax. It appeared that no fee had actually been paid to the referee or his estate, and that no specific demand for such a fee had been made. That fact, however, is not decisive of this motion. It is well settled, and is not disputed, 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. ( Little v. Lynch, 99 N.Y. 112; Russell v. Lyth, 66 App. Div. 290; Bottome v. Neeley, 124 id. 603.) The allowance of the referee's fees is sought to be sustained under the rule that where one contracts to give personal services for a definite period, or until he has completed a particular piece of work, and is prevented, by an inevitable cause, such as death, from rendering full performance, he will still be entitled to recover upon quantum meruit for the services actually rendered. Wolfe v. Howes ( 20 N.Y. 197) is cited as authority for this proposition, but the principal opinion in that case was qualified by a concurring memorandum by JOHNSON, Ch. J., in which, as it is said, all the judges concurred, that "quite a different question would be presented by a case where the services actually rendered should prove valueless; as e.g. if one should be retained to compose an original literary work and having faithfully employed himself in preparation, should die without having completed any work of value to the employer." In the present case neither party could reap any advantage from the partial completion of his work by the referee, for his death terminated the reference, and all that was done by him goes for nothing, no advantage accruing therefrom to either party.
The order appealed from must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
INGRAHAM, P.J., LAUGHLIN, CLARKE and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.