Misc.] Supreme Court, October, 1905. SAMUEL C. KEELER, Plaintiff, v. HELENA S. BELL, Defendant. (Supreme Court, Schuyler Special Term, October, 1905.) Reference - Compensation of referee - Liability of parties - Amount. Where a cause is referred by stipulation, each of the parties is liable for the fees of the referee; and where the cause is, after several hearings and without the knowledge or consent of the referee, terminated by stipulation for judgment in favor of the plaintiff, he is liable to the referee for his fees, although no report was made and filed. In such case, the recovery must be limited to the actual hearings before the referee and to those adjourned days when the parties met and further adjourned, whether evidence was taken or not. ACTION to recover for services performed as a referee in an action in the Supreme Court. Owen Cassidy and O. P. Hurd, for plaintiff, Clark Bell, for defendant. FORBES, J. This is an action to recover for services performed as a referee in an action in the Supreme Court. After several days' hearing and numerous adjournments in which there was no evidence taken by the referee, the attorneys in that action terminated the case by stipulation for a judgment in favor of the plaintiff in that action. A judg ment was entered against the defendant in the action, together with the costs and disbursements up to the time of the stipulation. This arrangement was made without the knowledge or consent of the referee. In the entry of the judgment the referee's fees were inserted into the judgment as a disbursement in behalf of the plaintiff at $112. This was done without the knowledge or consent of the refereethe plaintiff in this action. An execution was issued on the judgment so entered against the body of the defendant in Supreme Court, October, 1905. [Vol. 48. that action. He was taken on the execution, imprisoned and finally discharged. The evidence shows that the defendant was insolvent and the judgment was not collectible. An answer was served in the present action and, upon the trial, the defendant claims that she is not liable for the referee's fees, because no report was ever made or filed; and secondly that, unless those disbursements were collectible from the defendant in the first action, the referee's fees cannot be collected. This raises the question of the rights of the parties in the enforcement of a claim, on the part of the referee, for services. The reference was entered into by stipulation between the attorneys in the first action. Evidence was taken at Dundee several days; the parties being present and consenting thereto. The authorities seem to sustain the proposition that each of the parties to the stipulation, having the benefit of the services performed by the referee, is responsible. Russell v. Lyth, 66 App. Div. 290. The defendant in the first action being insolvent, the plaintiff in the present action seeks to enforce the collection of his claim alone against the plaintiff in the first action. I am inclined to think that the plaintiff's position is the correct one. The employment by the attorneys, under a stipulation, is sufficient to raise the presumption of a contract for the services. It was held in Hinman v. Hapgood, 1 Den. 188, that "An arbitrator may recover compensation for his services, without proving an express promise to pay. Where the submission is to several arbitrators, each may maintain a separate action for his compensation." The same doctrine was held in Nealis v. Meyer, 24 Misc. Rep. 344. Where a client directs his attorneys to appeal and they employ a printer to print the case and points, the client is liable to the printer; while the attorneys are not, unless they have pledged their personal credit. Tyrrel v. Hammerstein, 33 Misc. Rep. 505; Brown v. Travelers' Life Ins. Co., 21 App. Div. 42; Packard v. Stephani, 85 Hun, 197; Morrow ▼. McMahon, 71 App. Div. 171; Bonynge v. Field, 81 N. Y. Misc.] Supreme Court, October, 1905. 159; Consolidated Fruit Jar Co. v. Wisner, 103 App. Div. 453. The Code rule undoubtedly is that the making, delivery, or filing of a referee's report, is a condition precedent to his right to recover; but this is only so where the case has been submitted to the referee and the time limit in which to decide the case has expired. Code Civ. Pro., § 1019; Little v. Lynch, 99 N. Y. 112; Duhrkop v. White, 13 App. Div. 293. Where the parties themselves terminate the action by stipulation and enter a judgment, without the knowledge or consent of the referee, and the plaintiff is the prevailing party, the cause of action can then be enforced against him without the filing or delivery of the referee's report. Clark v. Mayor, 4 N. Y. 338. The same principle is held in Thomas v. Stewart, 132 N. Y. 580; MacKnight Flintic Stone Co. v. Mayor, 160 id. 72; Vandegrift v. Cowles En. Co., 161 id. 435; O'Dwyer v. Smith, 38 Misc. Rep. 136; Day v. Eisele, 76 App. Div. 304. The amount of the recovery must be limited to the actual hearings before the referee, and to such adjourned days at which time the parties met and further adjourned, whether evidence is taken or not. Brush v. Kelsey, 47 App. Div. 270; Mead v. Tuckerman, 105 N. Y. 557. The stipulation by the plaintiff's attorney of the amount of the referee's fees and the entering in his bill of costs and disbursements for $112 may be assumed as at least the value of the services actually performed; and for the purposes of this action the value of the services is fixed at that amount, together with $2 a day for expenses while at Dundee, seven days, making $14 expenses; amounting in all to $126, with interest on that sum from the date of the entry of the original judgment on the 2d day of May, 1901; and judgment is ordered accordingly. Judgment accordingly. Supreme Court, October, 1905. [Vol. 48, WILSON W. HOVER, Plaintiff, v. LILLIAN F. MAGLEY, Defendant. (Supreme Court, Albany Special Term, November, 1905.) Negotiable instruments-Bona fide holder-Parting with value-Negotiable Instruments Law, §§ 51, 52, 55. In an action by the payee of the joint and several promissory note of a married woman and her husband, the answer of the wife that the note was without consideration as to her, that she was an accommodation maker and the note was given for a pre-existing debt, alleges a good defense. DEMURREE to an answer in an action upon a promissory note. Chancellor Hawver, for plaintiff. Elmer S. Luckenbach, for defendant. HASBROUCK, J. The plaintiff has brought suit upon a promissory note for $300, reading as follows: "300.00 LINLITHGO, April 4, 1904. On demand for value received we jointly and severally promise to pay to Wilson W. Hover or order Three hundred dollars with interest. The defendant answers, among other things, that the note set forth was made by the defendant without any consideration therefor; that the plaintiff knew that there was never any consideration for said note, so far as the defendant was concerned, and that the note was given for a pre-existing debt of the husband of the defendant, Leonard Magley, and that the defendant was an accommodation signer of said" note. To this answer the plaintiff has demurred, stating that the Misc.] Supreme Court, October, 1905. defense contained in the answer is insufficient in law upon the face thereof. It is a familiar rule in regard to simple contracts that, if they lack consideration, they are not susceptible of being enforced; and this principle also obtains in the law of bills and notes. The court at General Term, in the case of Traders' Bank of Rochester v. Bradner, 43 Barb. 392, laid down the rule as follows: "The holder of commercial paper, who has received it for an antecedent debt, either as a security for payment, or as a nominal payment, without parting with any security, property or other thing of legal value, or giving any new consideration, is not a holder for a valuable consideration." It would be easy to determine the question presented by the pleadings herein, were it not for the Negotiable Instruments Law. Chapter 612, Laws of 1897, section 52 provides, that a holder for value exists “Where value has at any time been given for the instrument, the holder is deemed a holder for value in respect to all parties who became such prior to that time." By section 55, as amended, an accommodation party is made liable on the instrument to a holder for value, although such holder at the time of taking the instrument knew him to be only an accommodation party. By section 51 it is provided that "Value is any consideration sufficient to support a simple contract. An antecedent or pre-existing debt constitutes value; and is deemed such whether the instrument is payable on demand or at a future time." With regard to these provisions of the law, the Appellate Division, in Sutherland v. Mead, 80 App. Div. 107, say: "There is nothing contained in this enactment, therefore. which has changed the rule of law respecting the consideration of commercial paper as it had previously existed." * * In Roseman v. Mahony, 86 App. Div. 377, the court say: "By section 51 of the Negotiable Instruments Law * it is provided that 'an antecedent or pre-existing debt constitutes value.' But the holder of the note must give up the debt either wholly or qualifiedly in order to constitute |