The sun. [volume] (New York [N.Y.]) 1833-1916, 1877-11-14
CHAS. DEVLlN VS.. TIE CITY.
sHOULD REFEREE CHfR0E MORE
THIN THE STATUTORY FEEse
Arguments ny Me.---. W. q BARTLETT. Joseph
y. MARVIN, and r.. q. Crontn-The Law In
the Case - Interesting Points Involved.


.. Marvin, and =. q. Cronin-The Law In
the Case Interesting Points Involved.
An appeal from the decision Of Judge
Joseph f. DAILY. denying the motion on the part
OF the city In the caee Of Charles Dcvlin agt.
the Mayor. H.. to remove William H. Leonard,
Esq. as referee, WIS argued Yesterday before
the General Term OF the Court Of Common
Pleas An appeal from Judge Van Hoescns
order refusing to vacate n stay pending the ap-
peal to the General Term was also argued.
The action WIS referred conrusorily. on mo-
ton Of the plaintiff. against the objections Of
the defendant. the city The referee said hs
charge was S. an hour and s. for every adjourn
mcnt. and that he would not ats for the statu-
tory fee.
The Corporation Counsel. who was repro
scntcd by Mr.. W. o. Bartlett refused. on behalf
of the city to pay NOR than the statutory fee
81 day.
The plaintiffs attorney offered. on behalf Of
the plaintiff and the defendants other than tho
city, TO agree TO pay t5 an hour and s. for every
adjournment
The referee said he would try the case and
charge his customary fecs. IS an hour and IS
for every adjournment. which he should expect
the prevailing party to pay. and that he would
consider himself entitled TO hold his report IA
security until II was paid. unless the Court or
''i'b hiHi W u'lN'I IL Willput SUN nHyUlfnIf
whcreupon the counsel for the city refused to
proceed, and Withdrew.
Upon thrs" fats, u motion TO remove the ref
made before Judge J. +. Daily who denied the
same. and from his decision this appeal was
Mcssrs; Joseph J. Marvin and 7. C. Cronin
appeared for tn" nlainiin yesterday and the
city ~, was repr. scented ny Mr.. v. O. Bartlett,
legally charg" over - - day. unless both part
agreed To- IT, IL gave notice that he could not
moro II they prevailed. The other party re-
fused. Then the rcfercc ordered the refer nee
g. proceed. saying he would charge morr than
,hr legal ices. any way. and hold his report for
security. uncss ordered 10y the Court to d.
liver IT up. 1t IL plain that the referee only
proceeded in consequence Of tn" offer 81 one
party 10 pay more than his lawful fees. and his
own language ut the outset shows that he
dollars a sitting" The referee. under the cir
cuuistnnrcs. has no power to at further in this
ease. The provisions Tor references are wholly
statutory. Under the statute a refcrrr may at
for t3 n day, or for more II both pnrties agree
This rci"rre has given notice tpai he could not
act for So day and the parties have not agreed
on higher rat OF compensation. Therefore
he DOES not come within any legal provisions
for a reference, and ronsequ nifty he cannot cN-
.r'sr tho powers and fun tons Of referee
tie cannot compel the attendance Of parties or
" tn"ssrs. or order n default. or give Judgment
by the Rev Statutes IL il made misdr-
m"unor. punishable hy fine or impr comment
or both, Tor II prison To- rec'''v amy gr,ltuty or
Eilt Whatever from any party to any suit for the
trlni OF whirh su"h Il"rsnn snail hay" been an
point r''i"rcr " H. y, niarg., D. $685. sec. H.
So even II IN" city wor" to 20 on as the referee
evidently supposed II would. without consent
INK 10 pay more than IN" statutory fee of So
pr diem. the referee would commit crime IL
b" reported In favor of the plant II and took
from him NOR, than that amount for he would
thus hc receiving giit or gratuity. contrary to
tbs provision of IN" R'vsr Statutes. The
Court below erred in saying that no act ~ the
r'ier"" warrants or supports the Application tor
his removal. Tn" transact between himAnl
ne counsel for the plaintiff fulfilled all the con-
ditions r"quisit, TO constitute II contract. There
Whs meeting ui minds-an oiirr on thrlr part
a. pay him more than the city defendant would
pay, ana an acc"l t.tnrr OF that offer by him
tn" Court below says: " The referee could not
! possibly prevent such an orrr being made"
TINS i true. hut he could hay" refraincd from
accepting an oner made 10y only one side. hav-
ing previously refused To 20 on unn-s more
than the three dollars was Ia bee paid. This off"r
was = promise To- pay the referee more II he de-
cided IN favor Of the plaintiff than he would los
paid If he decided in favor Of the city defendant.
He exacted this PROMISE for until it was made
he refused To proceed. The case is analogous
To- that OF intended rewards 10 Jurors. CON
demned by Hawkins in his Pleas Of the Crown
| Chapter 50. Soc ~. See also the opinion Of
Judge wallace. in the cilsr of the Emma Mining
Company ". Park. The high reputation OF the
r"i"r"e nss'rt"d 10y the Court below Is not dis
! ru'ed. But ~ mans reputation II So high that
/ H. can at as Judge or referee under the prom
I ls"oi higher pay If ne decides Tor one party
than he i- To rrro,vr II h. decid : Tor the other
| without destroying his reputation. IA witness
| w, hpi' "l IN" INDUSTRIOUS Lnrd bN'"n.
! Mr. Marvin, in reply. said that NJ the begin-
ming Of III" first sitting the r"frre. said that he
could not net Tor IN" statutory fees, hut WINS
/ 'u~tom"d to receive 81 per hour AMI - for an
/ ndournmrnt, Thcrrupon q general eonversa-
! tlnu ia regard 10 his com prnsution was held hv
! tho lawyers. He said that. 80 lar as the plain
/ IN wt- on'"rn"d. he would agrr, tO give the
/ r't"r'" IN" comprehension that the rrirrer said
/ hc had ln,rn accustomed To receive He (the ref
cree SAID that hr would 70 ahead hut would not
/ deliver his report until he hal been paid his
customary Ices, unless ordered 10 do 50 by the
/ Court.
There is this feature about the case. Mr.
| Marvin, said thiri Justice Daily. the agree
| mcnt. promise. orussurtncc that ono side would
pay an extra Tee IN tn" event of success. and thr
question hior" ~" Court Is whether th.s Kind
| ~ procedure can hr allowed. The quo stun = a
| legal one. simply whether the plaintiff under
! tn's" CIR -umstan '"s, has the right e. press
draw
Mr. Cronin ~ counsel for the rlain,lY said
| that IN" referee went ON without an agreement.
" liza Juror should say that he must be- PAID
! more than his statutory frr. said Judge Robin
son; or II he wns not. he would not give
verdict. and should enter the lury box with the
understanding that his incrrns"d fee was sure
I from ON" side, would he not he, disuualinpd 2''
IN" statutory fee. and that the jurors case was
| not u parallel one.
Where il that in the ease ~ asked Chief Jus
| ticc Daly.
The testimony shows that he said that he
would 20 on, subject TO the order OF the Court.
" According TO the evidence" remarked the
| Chief justice. he did not go on voluntarily and
| Independently
The two main points made bv tho plaintiff
| We're that. as the referee decided Ia pro-
coed. and hold his report for his customary
charge. unless ordered by the Court to.driNrr 1t.
without such payment he could gct only the
statutory fee 81 ~ per day rs he was subject To
| the order Of the Court. and that Judge Joseph
i. DAYS order should be affirmed ON the
| grounds stated in his opinion.
| The Court reserved It's decision,