Devlin v. The Mayor, &c., of the City of New York. hour, and five dollars for every adjournment, which I shall expect the prevailing party to pay, and shall consider myself entitled to hold my report as security until it is paid or until the prevailing party assents to doing so, unless the court shall order me to deliver it without such payment. "Mr. Bartlett: Whereupon Mr. Bartlett refuses to go on. "Mr. Cronin: The defendants, other than the city, are willing to stipulate, under the section of the Code, in writing, that the fees of the referee be fixed at a larger sum than the sum of three dollars a day, and at the usual rate of five dollars an hour. "Mr. Burwell (from the office of Scott and Crowell, having come in since the stenographer began to take notes): And the defendant, Thomas Hope, concurs in what Mr. Cronin says. "Mr. Marrin: Mr. Marrin says that these minutes are now being taken by the stenographer from the mouth of Mr. Bartlett after what was really said had been said before the referee, and before the stenographer began to take his minutes, and that what he, Mr. Marrin, said was that, as far as the plaintiff was concerned, he was willing to agree to the usual charges in excess of the statutory allowance, and that this was said by him before any thing was said by Mr. Bartlett about withdrawing from the case or refusing to go on. "Mr. Bartlett: Mr. Bartlett says that he understood the words of Mr. Marrin to be precisely as he has stated them, and he has no earthly doubt whatever that he spoke those words; that he believes he spoke them now, and that being called upon to answer whether they were correct or not he refused to deny them or dispute them. "He understood Mr. Marrin to say that the plaintiff would be responsible. "Mr. Marrin: Mr. Marrin says that he did not refuse to answer any question that Mr. Bartlett put; but that a question arising before the referee as to who was entitled to speak first, Mr. Cronin or himself, he submitted himself to the order of the court until such time as he should be allowed to speak, and that so far as the words "being responsible for" go he did use them and uses them now, but uses them in Devlin v. The Mayor, &c., of the City of New York. connection with the other part of what he said, to wit: that the plaintiff was willing to agree under the statute with the other defendants and be responsible for his share of the fees, in excess of the statutory allowance. "Mr. Bartlett: There is a legal point involved here. "Mr. Bartlett: I don't suppose, your honor, after an offer is made by one party to be responsible for an amount of fees that the other party refuses, assent to, will think for a moment of going on with the reference. "The referee: I do not see any reason why I should not proceed. "Mr. Marrin: Suppose we go before another referee, Judge Mitchell for instance, and you won't agree to pay him more than three dollars a day, and then we go before another and another referee, and so defeat altogether the order of the Court. "The referee: It is idle to discuss this-proceed with the case. "The Messrs. Bartlett then withdrew. 66 Upon these proceedings the corporation counsel moves for an order removing the referee and vacating the order of reference." William O. Bartlett, for appellant. T. C. Cronin and J. J. Marrin, for respondent. BY THE COURT*-The statute has fixed the amount of the referee's fees, unless the parties agree to pay a larger sum. They did not agree in this case. The counsel for the corporation refused to assent to any agreement for the payment of more than the statutory fees. The only course then for the referee was to proceed with the reference at the statutory rate of compensation, or to decline to act. This was not his decision. He decided that he would try the case; and after it was submitted, and his decision prepared that he would * Present, CHARLES P. DALY, Ch. J., and ROBINSON, J. Meyers v. Bennett. notify the prevailing party, "when he should expect to charge the customary fee of $5 an hour, and $5 for every adjournment, which he should expect the prevailing party to pay, and should consider himself entitled to hold his report as security until that amount was paid, unless the court should order him to deliver it without such payment." We are of opinion that he could impose no such conditions. It was placing the counsel of the corporation in a very unpleasant position to require him to go on and try the case with that understanding after his opponent had agreed, and he had refused to agree, to the rate of compensation above named. It would not, we feel certain, have in any way affected the decision of the referee, but we are of opinion that a suitor cannot and ought not to be required to go on and try a cause before a referee under such circumstances. In our opinion he has a right, as he may be liable for the payment of the fees, to require that the referee shall act for the compensation fixed by the statute, or that a new referee be appointed. We think, therefore, that the motion below should have been granted, and that the court should have appointed another referee. The order appealed from should, therefore, be reversed. GEORGE E. MEYERS et al. Respondents, against JAMES GORDON BENNETT (Impleaded), Appellant. (Decided February 4th, 1878.) Under the Mechanics' Lien Act, applicable to the city of New York (L. 1863, c. 500), as amended in 1866 (L. 1866, c. 752), labor done on premises in pursuance of a contract with a prior owner, cannot be the subject of lien as against a succeeding owner, and unless such lien had already been imposed before any transfer of the title is effected by deed or operation of law, any proceedings thereafter instituted under the act are entirely ineffectual, even to afford any right to a personal judgment between any of the parties to the contract. Where, therefore, an owner of property in New York City made a contract for the Meyers v. Bennett. erection of a building thereon, and before the work was completed died, having devised the property in trust, and the contractor, under the direction of the trustee (who was also executor of the deceased), proceeded with the work according to the contract.-Held, that the filing of notices. after the death of the owner. in accordance with the provisions of the act, did not create any lien upon the trust estate, and that in proceedings to foreclose the liens claimed to have been acquired by the filing of such notices, a personal judgment could not be rendered against the trustee. APPEAL by the defendant, Bennett, from a judgment of this court, entered on the report of Homer A. Nelson, Esq., who had been appointed referee to hear and determine the issues, in favor of the plaintiff and certain of the lienors, defendants. The facts necessary to an understanding of the decision here are stated in the opinion. John Townshend, for appellant. Niles & Bagley, for respondent Meyers. L. Laflin Kellogg, for respondent Murray. VAN HOESEN, J.-A contract was made on the fifth of February, 1872, between James Gordon Bennett (now deceased) and Edward Hall, for the mason work of a building to be erected according to certain specifications upon certain premises owned by the former, and constituting the entire lot fronting on the west side of Nassau street, between Ann and Fulton streets. The building was to be completed on or before the first day of April, 1873. The work was to be paid for in monthly instalments as it progressed, to the amount of eighty per cent. of the value of the work, upon certificates of the superintendent and architect that the work had been done in a good, workmanlike and substantial manner, and the balance of twenty per cent. paid on the like satisfactory completion of the whole. Meyers v. Bennett. It was further provided that if the contractor should, during the progress of the work, refuse or neglect to supply sufficient materials or workmen, the owner should have power to provide materials and workmen after three days' notice in writing to the contractor to finish said work, the expense to be deducted from the amount of the contract. The contractor commenced the work on the 1st of May, 1872. James Gordon Bennett, who thus contracted with Edward Hall, died in May or June, 1872, leaving a last will and testament, by which he devised the premises and his other residuary estate to the defendant upon trust to collect the rents and profits, and after paying "taxes, assessments, interest, and other outgoings," to pay the residue to his daughter Jeanette during the lifetime of his wife; and on the death of the latter all such estate was to be divided equally between the defendant and his sister Jeanette. By a subsequent codicil the interest of Jeanette was limited to a life estate, with remainder to her children or descendants. Mrs. Bennett, the widow, died March 31st, 1873, and as to Jeanette the trust continues. The referee finds that the defendant "individually, and as such trustee, ratified and adopted said contract with said Edward Hall," and authorized and directed him to proceed under the same, and erect said building, but fails to find the further allegation of the claimant that he "assumed " said contract. The finding is ambiguous, and is not founded upon any agreement shown to have been made by the defendant upon any new and independent consideration, nor by any writings signed by him, to create any liability within the provisions of the Statute of Frauds. It establishes no personal claim against the defendant after the death of his father. The contractor, Hall, after the death of the father, proceeded to perform the work under the original contract, and nothing is suggested by the pleadings or testimony exempting the estate of the father from the payment of any debt arising under his contract. The finding that the defendcontract and directed the ant "ratified and adopted" the |