The plaintiff sues as assignee of Clarence Bonynge, a stenographer, and John S. Jenkins, a lawyer, for stenographer’s fees and referee’s fees. The complaint alleges that between certain dates the assignor Bonynge rendered and performed for the defendants work, labor and services as stenographer, at the request of said defendants, and that for said services so rendered the defendants agreed to pay said Bonynge the sum of $338.25, which is alleged to be the reasonable value of said services. It is also alleged that the assignor Jenkins *604was appointed referee by one of the surrogates of the county of ¡New York in a certain proceeding, and the reference proceeded before said assignor, the reasonable value of his services being $150. The defendants respondents are respectively administrator and - administratrix of the goods, chattels and effects of Agries C. .Taylor, deceased. -
In April, 1905, one Marie ¡L. Davies (a defendant), who was interested in the estate of said Agnes • C. Taylor, deceased, presented a petition to - the- Surrogate’s Court praying that - the respondents be required to give additional security as administrator and administratrix. An order was thereupon made referring it to, plaintiff’s assignor Jenkins to take evidence and report to the ■surrogate. Plaintiff’s assignor Bonynge was employed tó act as stenographer upon the.'reference,, and 'at the first meéting the attorneys for the petitioner and for the administrator entered into the following stipulation :■ “ It is stipulated by and between the parties hereto that Clarence Bonynge be employed as stenographer, that he furnish one copy of the minutes, and that his fees, at the rate of twenty-five cents per .folio, and five dollars per diem in case the testimony taken at, any one hearing does not at the folio rate aggregate five dollars, or in case two hours’ notice of adjournment -is not given, be made part of the referee’s fees and paid out of the estate on the taking up of the referee’s report.” Bonynge^ so far as appears, took no part in the stipulation,.unless he can be deemed to have done so because he was present when it w.as made, and took it down stenographically as a part.of the minutes. -The -defense to the claim for the stenographer’s fees rests upon -two propositions. It is said that, the respondents participated in the proceeding and employed Bonynge in their representative capacity as administrators, and that no personal claim' can be enforced against them, and it is-further said that by sitting quietly by when the above-quoted stipulation was . made between the-attorneys, Bonynge acquiesced therein and agreed that' his fees should be made part of the.referee’s fees and paid out of- the estate, and heneé that, whatever might have- been his rights under other circumstances^ he cannot in this action recover from- the respondents personally.
It is well settled that parties to a reference,' even if ordered against their objection, are liable for the fees of the referee and the *605stenographer, where they have agreed by their attorneys that a stenographer shall be employed. (Russell v. Lyth, 66 App. Div. 291; Bottome v. Alberst, 47 Misc. Rep. 665.) The general, rule respecting contracts made by executors or administrators, although for the benefit of the estate, is that the executor or administrator becomes primarily personally liable, although in a proper case he may be permitted to recoup himself out of the funds of the estate. (Austin v. Monro, 47 N. Y. 360; O'Brien v. Jackson, 167 id. 31; Shaffer v. Bacon, 35 App. Div. 248.) In O'Brien v. Jackson (supra) the action was brought against the defendants as executors for repairs made-upon property of the estate. It was held that the action could not be maintained, the court saying: “ The general rule is well settled in this State that executors or trustees cannot by their executory contracts, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, bind the estate and thus create a liability not founded upon the contract or obligation of the testator.” It was pointed out that only in exceptional cases could an executor — and the same rule applies to an administrator— charge the estate in favor of a person making an expenditure for its benefit. Such a charge can be enforced only in an equitable action to which all persons interested in the estate are parties. The result of the cases is, as stated in Foland v. Dayton (40 Hun, 563), that the administrator himself will be personally liable for the value of services rendered at his instance for the benefit of the estate, where there is no aereement on the part of the creditor to look to or confine his claim for compensation to the estate itself, or to the defendant in his official capacity. It follows, therefore, that, but for the stipulation between the attorneys, Bonynge would have had an undoubted claim against the respondents personally for the value of his services. Did that stipulation act as an agreement on his part to look only to the estate ? On its face it was no agreement by him at all. It was entered into between the parties to the proceeding, and these were the petitioner, Marie L. Davies, on the one hand and these respondents on the other. The stipulation was one such as parties frequently make under like circumstances for their protection against each other. Without some such stipulation neither party conld have taxed the stenographer’s fees against the other, and it is quite probable that *606the surrogate, if the successful party had objected, would have refused to charge the expenses of the unsuccessful party upon the estate.- This, as I consider, was the sole consideration upon which the stipulation was entered into. It was intended to provide, as between the parties themselves, that the cost of employing a stenographer should be treated as. a part of the referee’s fees and paid out of the estate. With this agreement the stenographer had nothing to do. He did not in terms become a party to it, and he could not have prevented the parties from entering into it if he had wished to, and it would certainly present , an extreme case of finding an implied consent on his part to look to the estate and not,the individual, from the fact that he stood silent while the parties entered into a stipulation for their own protection against each other, which he would have been powerless to prevent if he wished to do so, and which it would have been impertinent on his part to have objected, to. .So far then as concerns the claim for the stenographer’s fees, the reasonableness of which is not contested; the judgment; of the Municipal Court was right.
■ The claim for the referee’s fees cannot, however, prevail. Passing the question whether or not the reference ivas terminated, the referee’s right to his fees did not become complete until- he made and delivered or filed his report.- The record shows that this action was commenced before this was done.
The determination of the Appellate Term should be reversed, and the judgment of the Municipal Court reduced by the'amount allowed for the referee’s,fees, with interest, and as so modified affirmed, without costs to either party-in this court or the Appellate Term.
Laughxiií, J., concurred.
Determination affirmed, with costs, and judgment absolute ordered against plaintiff on his stipulation.