We are unable to see any authority for directing the receiver to pay these fees. The simple case is that Mr. Anderson has, or thinks he has, a claim against funds in the hands of a receiver. He might petition for its payment, or he might probably ask leave to sue and to determine the amount by a suit. If he were to sue, he would have to pay all the expenses of the litigation (including a referee’s *526fees if the ease was' referred), until final judgment in his favor. That final judgment would include the legal fees, etc., taxable. So in this case he has petitioned for payment. The matter has been referred, not probably to hear and decide, but to report. The report being in his favor he can pay the fees and take it up. If the court should finally confirm the report and adjudge payment, such •adjudication would doubtless include all proper fees, taxable or ■chargeable in such cases. If the court should finally refuse to confirm, , and should deny him any payment, the fees he would have paid would be a part of his loss for making an unjust claim. The doctrine of Geib v. Topping (83 N. Y., 46), is quite applicable. The referee is not an employee of the court, and the court has no responsibility in his payment. The order which was made in this matter assumed that the burden of the payment might afterwards be determined on the final order upon the Anderson claim. But it would be difficult to say how the receiver could ever recover from Mr. Winfield or from Mr. Anderson these fees, after they had once been paid. We are, therefore, of the opinion that the part of the order which directs the receiver to pay those fees is erroneous.
This view might, for the present, dispose of this order. Because the question what fees and compensation Mi’. Anderson ought to pay the referee, in order to obtain the report, is not properly before us. Mr. Anderson is no party to this motion or this appeal. The receiver, the Attorney-General, and intervening creditors appear. But Mr. Anderson had, of course, no objection that the court should require the receiver to pay the .referee any amount of fees. When however the question arises what fees must Mr. Anderson pay in order to obtain the report, if the referee insists on payment before he delivers it, then plainly Mr. Anderson ought to be heard; and he was not heard at the Special Term, as appears by the order. If however that part of the order which determines the amount of the fees should remain standing, then, after a final adjudication on Mr. Anderson’s claim, if he should recover and recover his costs, this order would be conclusive. For this reason while we cannot, as against Mr. Anderson, determine the amount of the fees, we can at least examine the question whether they should remain determined at the amount mentioned in the Special Term order.
We think this amount cannot stand.
*527First. Upon the papers before us there is no sufficient evidence of an agreement for a greater compensation than that given by statute. No signed agreement is shown. And the extract from the minutes of the trial does not show a consent by the Attorney-General, or by eei’tain of the policyholders. (Chase v. James, 28 N. Y. Sup. Ct. [16 Hun], 16; First. Nat. Bank v. Tamago, 77 N Y., 176.)
Second. Even if the agreement for a greater compensation had been validly executed, we are satisfied from an examination of the affidavits, as they at present appear, that the fees would not reach the sum allowed. The alleged agreement was twenty dollars for each sitting where proceedings were had, and ten dollars for each adjournment. The affidavit of Mr. Moses shows from the stenographer’s minutes sixty-five sittings. The referee’s clerk claims 138 ; but does not state that any proceedings were had at all, or any of these. If proceedings were had at sixty-five, and the others were adjournments, this would make, say $2,700. The further compensation was “ ten dollars an hour for each hour actually spent by the referee in examining evidence or writing a report.” The case was closed May sixteenth and decided July eleventh, giving forty-eight working days. It does not appear how much of that time was spent by the referee on this case. It certainly is not shown that the remaining $5,000 was earned in that time at ten dollars an hour. The referee’s petition states that he believes he has spent from 800 to 1,000 hours during the period of three years and three months on this matter, directly and indirectly. But the agreement, if made, could not have intended to give ten dollars per hour for the time spent in the sittings, in addition to the twenty dollars a day. There is not sufficient proof of the services rendered to enable ns to say that if the agreement had been made the amount allowed has been earned. -
The orders appealed from must therefore be reversed, with ten dollars costs and printing disbursements, and the motion denied, with ten dollars costs. This is without prejudice to any proper motion for adjustment of the fees on notice to Mr. Anderson and all others interested.
Present — Learned, P. J.; Boardman and Bocees, JJ.*528Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. This to be without prejudice to any proper motion for adjustment of fees on notice to Mr. Anderson and all persons interested.