This case comes before us on a bill of exceptions, with the report of the referee.
On the trial it appeared that the plaintiff offered evidence tending to show that pending the proceedings before the referee,- instituted by the receiver upon the supplemental proceedings to reach the moneys in the hands of the sheriff of Cattaraugus, the plaintiff was advised by her attorney, one of the defendants, not to object, as he was going to put in as large.a bill as he could, on the hearing before Morris, the referee, described in his answer, and that she must not object to their proving an allowance for as great a sum for their services as they could; that all extra allowance should be for her benefit, and they would only charge her such sum as the services were actually worth, and pay her the overplus; as, in case they did not get a report for the whole sum, they wanted to save her in this manner as much as they could, as they were certain to get counsel fees allowed by the refereej out of the fund; and that she consented to such arrangement. That when such evidence.was offered, it was objected to by the defendant Finch, upon the ground that the order" made in the proceedings described in his answer was and is an adjudication as to the value of the defendant’s services, and could not be contradicted by paroi evidence. The referee intimated his opinion to be that the objection *500was well taken, but ruled that he would receive the evidence, and reserve the decision of the" question until the final decision of the cause ; and that said referee finally-decided that said proceedings and order of this court, as above stated, were an adjudication as to the value of the defendant’s services, and could not be contradicted or varied by the evidence given in the action; to which decision the plaintiff duly excepted.
This exception we think well taken. The referee should have decided the question when the evidence was offered. It has been ruled, in several cases, that a referee, in such a case, cannot reserve the question as to the admissibility of evidence offered and decide it on the final disposition of the cause. The parties are entitled to have such questions passed upon at the time they are raised, so that they can govern themselves, in the further trial of the cause, in the light of, and in reference to, such decision. It is true the referee received the evidence offered, and it also appears in his report that he found the value of the defendant’s services to have been $900 ; but in his report he expressly found and held, as matter of law, that such proceedings and order of this court referred to were and are an adjudication as to the value of said defendant’s services, and could not be contradicted or varied by paroi evidence given in the case.
We think this decision erroneous.. The plaintiff was not such a party to the proceeding referred to as to be concluded by that adjudication, as between her and the defendants. They were acting on such reference as her attorneys in that proceeding, and not in an adversary relation. The question whether any part of such allowance óf $900, made by the referee in that proceeding, to the defendants for. their services, belonged to the plaintiff, as between her and her attorneys, was not decided or litigated before the referee, Morris, in that proceeding, and no question of that kind was considered by him or decided. We think the decision of the referee *501on the trial, and in Ms report, on this question, was erroneous. If the referee had distinctly stated, in his report, that the same was based exclusively upon proof before him of the value of the defendant’s services, and that he had not, in any respect, based his decision upon the said adjudication then held to be erroneous, we might perhaps sustain his report and judgment, on the ground that the plaintiff, was not injured by the error. But this does not appear, and we cannot determine that such error did not control or affect the decision of the cause. It is apparently based upon such decision in the report of the referee, and we do not see that the error is in any way cured.
[Fourth Department, General Term, at Buffalo, June 3, 1873.Mullin, Talcott and M. D, Smith, Justices.]
The referee having expressly held that such adjudication was final and conclusive upon the parties, and could not be contradicted or varied by paroi, we cannot presume and hold that he disregarded his own decision on this point, and .gave force and effect to the paroi proof received.
The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.