#### Daniel S. Riddle, Respondent, *against*Henry A. Cram, Appellant.

(Decided February 6th, 1882.)

In an action for fees of a referee appointed to take the examination of a judgment debtor in proceedings supplementary to execution, the plaintiff cannot recover upon a *quantum meruit,*as the compensation of such a referee is fixed by statute ; and evidence stliat the examination disclosed that the debtor had property or means to pay the judgment is therefore inadmissible.

Appeal from a judgment of the general term of the Marine Court of the City of New York affirming a judgment of that court entered upon the verdict of a jury.

*402The facts are stated in the opinion.

*H. S.*Cram, for appellant.

*Daniel S.*Riddle, respondent, in person.

Van Brunt, P. J.

This is an action to recover referee’s fees by a referee appointed in supplemental proceedings. The defenses were a denial that the plaintiff ever rendered any services to the defendant, and the Statute of Limitations. The plaintiff in his complaint alleged the value of the services to be a certain sum, and this was denied by the answer.

The evidence shows that the defendant in this action was an assignee of the judgment upon which the supplemental proceedings were had, that he was cognizant of the reference, and that lie appeared before the referee and urged that it should proceed ; and it was also testified by one of the witnesses, Girding, that the defendant knew of the reference and approved of it. This was more than was necessary to establish a liability upon the part of the defendant for the fees which he had incurred upon that reference. It was urged upon the part of the appellant that, the reference never having been terminated, no cause of action accrued. It would seem that a complete answer to this objection is presented by the evidence of the fact that the proceedings were suspended and that the judgment upon which the proceedings were founded was paid in full to the defendant, and the judgment satisfied.

Several exceptions to the introduction of testimony were taken, some of which seem to be well founded. It is true that the plaintiff alleged a *quantum*meruit. and that the answer denied it, but the theory upon which the plaintiff based his recovery was the compensation fixed by the statute, and had nothing to do whatever with the nature of the services, or with their value, but simply depended upon their rendition.

Under such circumstances the evidence in regard to the nature of the services and their value seems to have been entirely immaterial. The plaintiff in this action had no right to raise the issue of a *qua?itum*meruit, and although it was *403denied by the answei', that did not authorize him to introduce proof upon that issue when the only amount which he could recover was that-which the statute had fixed as compensation for such services. Therefore, the question contained in the 12th interrogatory propounded to the witness Girding as follows : “ State whether or not, if you know, the examination of Yan Yalkenberg disclosed property or showed that he had means to pay the judgment upon which the proceedings had been based ? ” was clearly improper, particularly when we consider the nature of the answer, which was as follows: “ The examination of Yan Yalkenberg disclosed that he had a large amount of money, and it was in consequence of that fact that the judgment was paid.”

This testimony may have influenced the jury in determining the question as to whether Mr. Riddle had been employed by Mr. Cram or Mr. Girding, which was a very material issue in the case as presented by the evidence.

We think, therefore, that the admission of that evidence being erroneous under the theory of the plaintiff's action, the judgment must be reversed and a new trial ordered, with costs to abide the event.

Beach, J., concurred.

Judgment reversed and new trial ordered, with costs to abide event.