The plaintiff’s assignor, Kochendorfer, was a stenographer in the employ'of the defendant when the latter was the referee in a certain action. At the reference the following stipulation was entered into: “ It is stipulated by the parties hereto that John J. F. Kochendorfer be employed as stenographer herein, and that his compensation form a part of the referee’s fees and be taxable as such.”
Kochendorfer took the minutes at the reference. The defendant’s bill for his fees as referee was thereafter taxed and paid, but no item fot stenographer’s fees was separately stated or taxed therein. This action is brought against the referee to recover the value of the stenographer’s services at the reference.
The time of the plaintiff’s assignor belonged to the referee *600and. his services as stenographer at the reference were paid for when he received his wages. The very terms of the stipulation above quoted indicate that the stenographer was not to be doubly compensated for his services, hut that any compensation to which he might be entitled from the parties to the action should he paid to his employer, the defendant. In no other way could the defendant have received the benefit of the stenographer’s time to which he was entitled. It is not to he supposed that the' defendant intended to make a present of this time either to the stenographer or to the parties to the action.
If it is claimed that the stenographer worked overtime, that- fact should have been proved at the trial as well as the value thereof.
There is no evidence to sustain the judgment, and it should, therefore, he reversed and a new trial ordered, with costs to the appellant, to abide the event.
Judgment affirmed, with costs.