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Daby v. Jacot.

would be entitled, for receiving order and posting notice of sale, to $10; for attending sale, to $10; for drawing deed, to $5; for three adjournments, to $9; for making report of sale, to $5; for auctioneer's fees, to $12; the whole commissions in any one case not to exceed $500. The referee in fact disbursed less than $5,000, including the greater part of which he retained for fees, &c. The act does not provide that he must be allowed $500 in any one case, but it should not exceed $500,-thus leaving it to the court to fix a sum not exceeding that. Searches do not attach in any form to referees' fees on a sale.

VI. On the question of the constitutionality of 2 L. 1869, p. 1377, c. 569, counsel cited Gaskin v. Mack, 42 N. Y. 186; People v. McCann, 16 Id. 58; Crowell v. Lawrence, 41 Id. 139; People v. O'Brien, 38 Id. 193.

VII. The fees of the referee must be adjusted by the court under the law of 1869 as amended by L. 1874, p. 212, c. 192. As the petitioners represent but one third of the action-one third of the property-they can only be required to pay one third of the fees.

VIII. Whether the referee earned the fees on the first reference, which the attorney for the plaintiff in the partition suit was bound to pay on taking up the report, cannot be determined by himself on a second reference in the cause.

DAVIS, P. J.-In Richards v. Richards, Mr. Justice LAWRENCE held that the fees of a referee to sell in partition cases are governed by the provisions of chap ter 569 of the Laws of 1869, as amended by chapte 192 of the Laws of 1874. I feel bound by that decis ion, without examining the question as an original one The referee is entitled to have his fees taxed in accord ance with the provisions of that act; which taxatio will allow him the following items: [The learned judg here specified items, which see more fully stated in th

Daby v. Jacot.

order as settled, below:] including commissions on the moneys received and paid out, at the same rate as allowed to executors and administrators. The fees of the referee on the first reference might also be allowed, and the disbursements actually paid for searches. These must be adjusted by the order; order to be settled on two days' notice.

Order.

In accordance with this decision the following order was settled:

That the referee be allowed for his fees, commissions and disbursements made and incurred by him on the sale of all of the property described in the judgment roll herein, and known as premises, Nos. 421, 425 and 427 West Sixteenth street, in the city of New York, the following sums, viz:

For receiving order and posting notice

of sale,

For attending sale,

For auctioneer's fees paid by pur

$10.00

10.00

For drawing three deeds,

15.00

For making two reports of sale,

For three adjournments, $3 each,

9.00

10.00

chasers,

36.00

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13.75

1.75

For printer's bill advertising sale,

For fees paid register for searches,

For

For

court clerks,

For fees paid U. S. loan commissioners,

For his commissions on $49,450, the whole amount

of sales in the action, as follows:

On the first, $1,000, at 5 per

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The said referee is also allowed the sum of $250, as his fees, on the reference herein as to title, &c.

That the said referee retain said sums taxed and allowed, as aforesaid, out of the moneys received by him on the sales made under the judgment herein, and that he pay over to the persons who paid in the moneys received by him on the sales herein, the balance of the moneys due to them respectively after deducting the proportionate part or share of the fees, commissions and disbursements allowed by this order out of their said payments respectively, within five days after the service of a copy of this order on him.

HENDERSON v. HENDERSON.

City Court of Brooklyn; General Term, December,

1876.

COSTS.-NEW TRIAL.-EVIDENCE.

A new trial granted because an exception is well taken cannot be conditioned on payment of costs.

On a motion for new trial, both upon exceptions and for insufficiency of evidence, an order granting it on condition of payment of costs, without specifying the ground, will be presumed to be made on the latter ground, and therefore will be sustained.

Appeal by defendant from part of an order.

Henderson v. Henderson.

This action was brought by John V. S. Henderson against Peter S. Henderson. On the trial, testimony having been given by both parties, and various exceptions having been taken by the defendant, and overruled by the judge; a verdict having been rendered in favor of the plaintiff; a motion having been made by defendant to set aside the verdict and for a new trial on the minutes of the judge, upon the ground that there was not sufficient evidence to sustain the verdict, it was "ordered, that the said verdict be, and the same hereby is, set aside and a new trial granted, upon payment of costs of the former trial within ten days from the date of the service of a copy of this order on defendant's attorney, otherwise said verdict to stand."

Defendant appealed from that portion of the order imposing costs as a condition of granting the new trial, claiming that the order was granted both on the ground of the insufficiency of the evidence and upon the several exceptions taken by him.

The respondent claimed that the motion for a new trial having been made, among other things, upon the ground that the verdict was against evidence, the judge had a right to impose costs of the previous trial as a condition of granting a new trial.

S. F. Cowdrey, for appellant.-I. The granting of a new trial solely by reason of the insufficiency of evidence, is a matter of favor, and in such case, the condition of payment of costs is proper. It is in many cases, however, said to be in the discretion of the judge (Slocum v. Lansing, 3 Den. 259; Bank of Utica v. Ives, 17 Wend. 504; Goodyear v. Ogden, 4 Hill, 106; Jackson v. Thurston, 3 Cow. 342; Birkbeck v. Burrows, 2 Hall, 51; Rogers v. Brown, 4 N. Y. Sup'm. Ct. [T. & C.] 698; Overing v. Russell, 28 How. Pr. 154; North v. Sargeant, 14 Abb. Pr. 226; S. C., 33 Barb. 352; Wood v. Woodburn, 27 Id. 346; East

Henderson v. Henderson.

River Bank v. Hoyt, 22 How. Pr. 480; Harris v. Panama R. R. Co., 5 Bosw. 318; Bailey v. Park, 5 Hun, 41).

II. If a new trial is granted as of strict right, the payment of costs must abide the event, nor can any condition be imposed (Slocum v. Lansing, supra; Lafarge v. Kneeland, 7 Cow. 461; Williams v. Smith, 2 Caines, 253; Anderson v. Rome, &c. R. R. Co., 54 N. Y. 343; Green v. Burke, 23 Wend. 490; Robbins v. Hudson R. R. R. Co., 7 Bosw. 5; Jacobsohn v. Belmont, Id. 18).

III. When a new trial is granted as of strict right, the courts exercise their discretion and grant the motion without costs, or direct the costs to abide the event, on the ground that the necessity for it has grown out of occurrences which the party cannot control (1 Grah. & Waterm. on New Trials, 60; Knapp v. Curtis, 9 Wend. 60, and cases cited supra).

Henry W. Isaacson, for respondent.-I. The fact that the judge imposed costs of the previous trial as a condition for a new trial, is sufficient evidence that his decision was based upon the ground that the verdict was against evidence (citing, besides several cases cited by appellant, Van Rensselaer v. Doyle, 1 Johns. Cas. 279).

II. That portion of the order imposing costs is not appealable because imposed as a condition of granting a favor, and it is entirely discretionary with the judge to grant or refuse a new trial upon his minutes, and to impose terms (Code, § 264; Joyce v. Mayor, &c. of N. Y., 20 How. Pr. 439; Anderson v. Rome, &c. R. R. Co., supra).

REYNOLDS, J.-The motion for a new trial upon the minutes was made upon exceptions taken at the trial, and upon the ground of insufficiency of the evidence to sustain the verdict. The order granting a new trial does not state the ground upon which it is made, but

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