Thurman v. Fiske.
New York Supreme Court
* Appeal by plaintiff from order of special term denying motion for retaxation of defendant’s costs. The. action was tried before a referee.
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* Appeal by plaintiff from order of special term denying motion for retaxation of defendant’s costs. The. action was tried before a referee. On the first hearing, both the plaintiff and the defendant being present and in hearing, and the referee having been sworn and about to proceed with the trial, it was proposed by the counsel for the plaintiff that the referee should charge for his services whatever he saw fit, to which the defendant then and there acceded. . The referee reported in favor of the defendant, and charged for his services more than $3 per day. The defendant paid the referee’s…
1Opinion of the Court
1st. That the necessity for a written agreement was waived by the consent and agreement of the parties in open court, citing Keator agt. Ulster and Delaware Plank Road Company (7 How. Pr. Rep. 41).
2d.- That the provision of section 313 of the Code is merely directory, citing Foster agt. Bryan (26. How. Pr. Rep. 164).
*3983d. That the plaintiff was estopped by the agreement and the defendant’s payment, without objection or notice of recall by the plaintiff, citing Dezell agt. Odell (3 Hill, 215).
All the judges concurring, order affirmed on first and third grounds above, with costs.
2Cases cited1 opinion
- Keator v. Ulster & Delaware Plank Road Co.New York Supreme Court · 1851
3Cited by5 opinions
- Glackin v. ZellerNew York Supreme Court · 1868
- Jones v. McPhillipsSupreme Court of Alabama · 1886
- Paine v. WoolleyCourt of Appeals of Kentucky · 1882
- Brown v. WindmullerThe Superior Court of New York City · 1873
- Wolff v. HornNew York Court of Common Pleas · 1894