#### Walter Brown, Plaintiff, *v.*James Sears et al., Defendants. Walter Brown, Plaintiff, *v.*Albert Gurnee et al., Defendants. Walter Brown, Plaintiff, *v.*Byron M. Britton et al., Defendants.

(Supreme Court, Onondaga Special Term,

May, 1898.)

Referee’s fees — Several similar cases tried together — *“*Expenses ” of the referee — Stipulation that he might “ fix his own fees Apportionment of witnesses’ fees — Copies of stenographer’s minutes.

The parties to three actions of a similar nature, brought by the same plaintiff and tried together before the same referee, stipulated that the referee might “ fix his own fees,” that the stenographer’s fees should be paid one-half by the plaintiff and one-half by the defendants, that the successful parties might tax the portion of these fees paid by them as a disbursement and further “ that the evidence is to be taken as in one ease 'and to be deemed to be taken in all of the cases so far as applicable.” The referee found for the defendants in all the cases and they were represented by different attorneys.

Held, that the defendants were not entitled to tax full referee’s fees in each case, that the fees paid should be apportioned ratably among all the eases; but that, additionally, the referee would be entitled to fees for any labor, bestowed upon a particular case, which labor was not common to all the cases.

That the referee was not entitled, in. addition to his fees, to “ expenses,” these consisting 'of car fare, hotel bills, etc.

That a stipulation that the referee might " fix his own fees ” was not a sufficient compliance with section 3296 of the Code of Civil Procedure limiting a referee to $10 per day unless “ a different rate of compensation is fixed ’? and (that consequently he was entitled to only $10 a day.

That but one set of witnesses’ fees were taxable in all the cases, where witnesses were called but once and had then testified for the benefit of all the cases.

That as the stipulation did not state how many copies of the stenographer’s minutes should be made, and as the plaintiff’s attorney had apparently acquiesced In the making of a third copy, it was taxable.

Motion to correct a taxation of costs in each of the above-entitled actions by the county clerk of Onondaga county, in favor of the *560defendants in each of said actions by striking ont certain items for referee’s fees, witnesses’ fees unid stenographer’s fees allowed therein.

Edwin Nottingham, for motion.

-L. L. Waters, opposed.

Hiscock, J.

The above-entitled actions were referred to and tried before the same referee. At the commencement of the trial the following stipulations were made by the attorneys for the various parties and entered upon the record, viz.:

*“*Stipulated that the referee may fix his own fees.

“ Stipulated that the stenographer’s fees shall be paid one-half by the plaintiff'and one-half by the defendants in the above cases, and that the successful parties may tax the portion paid by them as a disbursement.

“ Stipulated' that the evidence is to be taken as in one case and to be deemed to be taken .in all of the cases so far as applicable.”

Nothing further than the above stipulation was ever done to fix the rate of compensation of the referee. The cases were tried as one, the same attorneys ór counsel taking part in and conducting the trial in behalf of all the defendants in the different actions, although there were different attorneys of record.

The referee found in behalf of the defendants in each case and judgment was in accordance with such referee’s decision entered in their favor. The referee’s certificate Was to the effect that he was occupied twenty-five days in all of the cases together, and that he incurred about $150 expenses in the way of car fare, hotel expenses, etc.

The defendants were by the clerk allowed to and did tax, the statutory allowance of $10 per day for the entire number of days occupied by the referee in all of the cases, in every one of them; and' also one-third of the above expenses, to-wit: $50 in every one of the cases. In addition, the fees of all of the .witnesses called by the defendants were taxed in every one of the cases, amounting to $45.08 in every case, although the witnesses under the arrangement above indicated were-not called .and sworn separately therein., .

■ The fees of the stenographer who took the minutes upon the trial were taxed at an- aggregate -of $650, divided equally between the three cases. .

*561Plaintiff claims that it was error to tax the referee’s fees for the entire time consumed in all of the cases, separately in every one of them; also to tax the expenses above incurred; also to tax the entire fees of all of the witnesses separately in every case; also that the stenographer’s fees were taxed erroneously in that allowance was made for a third copy of the minutes, which was not authorized.

I think it was error to tax the fees of the referee for .the entire time occupied in the three cases separately, .in every one of them, which is in effect, as claimed by the plaintiff, allowing the referee three days’ fees for each day occupied. It doubtless might happen that a referee in many different cases might technically hold a session in all of them on the same day and, therefore, be entitled to several days’ compensation for one days’ work, but this would be where there was no relation between the cases. That is not the case here. The same person was plaintiff in all of these cases. The subject-matter of all of them was more or less related and the defendants had a common interest, although technically, perhaps, separate rights. The same attorneys appeared and acted together for all ¡of the defendants. Under these circumstances they were referred to the same referee under a stipulation practically that there should be .one trial in all of the cases at once, and this was as a matter of fact what happened. Under such circumstances, I think it very clear that the reasonable construction is that the trial was a common one for the benefit of all three cases and that the expenses in the way of referee’s fees should be divided equally between such cases, rather than that such trial'should be treated as a separate and distinct one for every one of the cases and the fees of the referee for.time spent therein be taxed three times. Upon the completion of the trial the referee would be entitled to spend such time in every case in carrying out and applying the labors of the trial to that particular case in the way of findings, decree, etc., as might be necessary, and fees for'this time added to one-third of the fees for the labor, common to all of the cases, would be the proper charge in that particular case. It was assumed, however, that if the defendants were not entitled to tax full fees in every case as they had done, a division accurate enough would be arrived at by apportioning the entire fees equally between the three cases, which may be done.

I do not know and there has not been cited to me any law which entitles parties to tax the expenses of a referee such as those above mentioned. ■ The provisions of section 3296, Code, covering this subject when it provides that a referee *“*is entitled to ten dollars for *562each day spent in the business of the reference ” seems to exclude the idea of a further allowance for such expenses in the absence of special provision therefor.

The stipulation made by the parties and above referred to, that,the referee might fix his own feies, was not a sufficient compliance with the provisions of the same section of the Oode, limiting a referee’s fees to $10 per day.“ unless at or before the commencement of the trial or hearing, a different rate of compensation is fixed * * ■ * manifested by an entry in the minutes of the referee or otherwise in writing.” The amount taxed for referee’s'fees and expenses, therefore, must be reduced in each case to one-third of a per diem of $10 for twenty-five days, certified by the referee unless the defendants elect to accept the stipulation of the plaintiff, that referee’s fees may be allowed and taxed at !$25 per day for twenty-five days, and the sum lof $100 allowed and taxed for expenses.

I do not think that the defendants were entitled to tax witnesses’ fees for every witness in every one of the cases or three times altogether.

What has been said in connection with referee’s fees with reference to the cases being tri'ed as one case applies also, of course, to the witnesses’ fees. The witnesses, as I understand it, were called once and sworn for the benefit of all three cases. If it had been necessary for the defendants to compel the attendance of a witness in all three of these cases it would have been proper to pay and tax fees three times, .and if the cases had been tried as separate cases it would undoubtedly have been proper for the defendants to so subpoena their witnesses in every case and pay fees therefor. But I do not think that this was the contemplation.of the parties, or that the defendants, as a matter of precaution and safety even, were so required to do with their' witnesses'. It was expressly stipulated that “ the evidence is fo be taken *as in one case*and to be deemed to be taken in all of the cases so far’as applicable:” The plain meaning of this, it seems to me, was that the witnesses should be subpoenaed and sworn in one case and then that their’evidence should be applied to and used in the other cases, and that it was not'necessary for the defendants, in order to get the revidence of a witness, to subpoena him in three cases. So far as appears, the evidence of all of the different witnesses was applicable to all of the cases, and when one of them had been subpoenaed and sworn in one case, defendants, under the stipulation in question, had the benefit thereof in the other cases and there was no ^necessity for subpoenaing him therein.

*563This conclusion leads to correcting the taxation of the witnesses’ fees by apportioning one set of fees to the three cases.

The only complaint urged against the stenographer’s fees is that defendants have paid for ,and are seeking to tax the expense of a third copy of the stenographer’s minutes at the stun of $170. The stipulation covering this subject .and above quoted did not provide how many copies should he written out, and there is not very clear evidence upon that subject. There seems'¡to have been a misunderstanding between the attorneys about how many copies there should be, but upon all of the facts I am disposed to think that there was enough of an acquiescence of the plaintiff’s attorney in the printing of the third copy so that the defendants’ attorneys, having paid therefor in good faith, should he allowed to tax the same.

The defendants’ attorneys make a cross motion for the allowance of motion costs upon the dissolution of injunction orders which were originally granted in these cases, and think they should he allowed $10 for the motion which they made to dissolve the same. If plaintiff’s attorney consents thereto, they may be allowed $10 costs for such motion and he may he allowed $10 costs of this motion. Otherwise no costs are allowed for either motion.

Ordered accordingly.