Opinion
October, 1935.
In an action to recover a payment by plaintiff to the defendant of a sum claimed by the latter for stenographer's fees before an official referee, on the ground that the exaction of such fees was illegal under section 116 Jud. of the Judiciary Law, order of the Appellate Term affirming an order of the Municipal Court of the City of New York, Borough of Brooklyn, First District, denying plaintiff's motion for summary judgment, reversed on the law, order of the Municipal Court reversed, and motion granted, with costs in all courts. In our opinion, under section 116 Jud. of the Judiciary Law, as it existed prior to the amendment thereof by chapter 854 of the Laws of 1935, the defendant was obliged to furnish one copy of the minutes of the trial to the referee, when required by him, without any charge to plaintiff therefor, and such obligation did not depend upon any special order or direction of the official referee. We further think that the payment made by plaintiff to the defendant for these minutes was not voluntary, but was under a legal compulsion. Young, Carswell and Johnston, JJ., concur; Hagarty, J., dissents on the ground that the minutes were not ordered by the official referee; Davis, J., not voting.