Bishop v. Bishop , 30 Abb. N. Cas. 296 ( 1893 )

GILDERSLEEVE, J. [after stating the facts]

The referee claims that said Randall did not comply with the requirements of the statute, inasmuch as he served his notice on said Patterson, as Mrs. Bishop’s attorney, instead of serving it upon Mr. Hitchings, who, the referee claims, is the real attorney for Mrs. Bishop, as no order substituting Mr. Patterson has ever been entered. The statute (section 1019 of the Code) provides that the referee’s report must be filed with the clerk, or delivered to the attorney for one of the parties, within sixty days from the time when the case or matter is finally submitted ; otherwise either party may, before it is filed or delivered, serve a notice upon the attorney of the adverse.party that he elects to end the reference; and in such case the action must thence-' forth proceed as if the reference had not been directed ; and the referee is not entitled to any fees. I do not think the referee’s contention can be sustained. There is nothing in the papers now before me to indicate .that Hitchings was ever able, after his illness, to perform the functions of attorney for Mrs. Bishop on the reference; and, indeed for aught that appears to the contrary, the disease from which- he was suffering may have caused his death. Certainly, the reasonable inference is that his incapacity to act as attorney for Mrs. Bishop continued, for the fact is that from the time Patterson assumed the duties of attorney he continued to discharge them to the end. Mrs. Bishop having employed Patterson, or, at the least, having accepted his services, and the referee having recognized Patterson as her attorney, neither Mrs. Bishop nor the . referee can now take advantage of any irregularity in the method or means by which Patterson assumed the functions of attorney. The service of the notice upon Patterson was a substantial compliance with the requirements of the statute.

The referee claims that the notice to Mrs. Bishop that his- report was ready and his offer to deliver the report to her upon payment of his fees, was substantially a delivery of the report. I cannot concur in this opinion; for, in order to prevent the termination of a reference by notice, as prescribed by section 1019 of the Code, the report must be actually delivered to the attorney of one of the parties,' or filed with the clerk, within sixty -days from the time the cause was finally submitted ; and an offer by a referee to deliver his report to the successful party, on payment of his fees, within the time limited, is not equivalent to a delivery. If a referee accepts a reference he must rely for the payment of his fees upon the interest of the prevailing party to take up the report, and if the prevailing party omits to do this, upon his common law action to recover them, after putting himself in a position to maintain it by filing the report (Little v. Lynch, 99 N. Y. 112).

Another point urged by the referee is that a stipulation was entered into, at the commencement of the reference, by which Mrs. Bishop and said Randall each agreed to pay one-half of the referee’s fees as they went along, and that a portion of the fees was so paid. I am of opinion, however, that by his failure to either file or deliver his report within the sixty days, the referee has, under the provisions of section 1019 of the Code, forfeited his right to avail himself of the stipulation to which he refers. He should have filed his report within the sixty days, and relied upon his common law action to recover his fees (Little v. Lynch, supra), when he perceived that Mrs. Bishop was hot likely to take up the report and pay his fees.

The motion to compel Randall to pay the referee’s fees must be denied, without costs.