Ordinarily a referee must look for his fees to the party who takes up the report, and not to the adverse party. (Geib v.Topping, 83 N.Y. 46.) In this case the party in whose favor the report was made, being a receiver appointed by the court, whose legal expenses are properly payable out of the fund, the court had power in the first instance to order the referee's fees paid directly out of the fund, but it was matter of discretion whether or not it would make such an order. For this reason, as well as for the further reason that the order appealed from was based largely on a question of fact, we do not think this appeal should be entertained.
It appeared on the argument that a considerable part of the fees allowed to the appellant by the order at Special Term had *Page 48 been voluntarily paid to the appellant, and it is urged that, by the reversal of the order made at Special Term, he may be subjected to the liability of refunding what he has received. That is a matter for the consideration of the Supreme Court. As the order of the General Term is without prejudice to a new motion by the appellant to adjust his fees, the court at Special Term will have ample power, if it deems it just, to protect the appellant to the extent of what he has already received.
The appeal should be dismissed, without costs.
All concur.
Appeal dismissed.