The four grounds stated will be considered in order.
First. The referee had made his report, and his duties terminated under the interlocutory judgment. The fees became due when the report was delivered. In this respect the case differs from Clapp v. Clapp, 38 Hun, 540, which is therefore inapplicable here. The defendant here (plaintiff there) is clearly liable for the fees of the referee. Hinman v. Hapgood, 1 Denio, 188; Geib v. Topping, 83 N. Y. 46.
Second. Section 90 of the Code, prohibiting the court from appointing a clerk of the court as referee, is clearly unconstitutional, as the legislature could not divest the court of common pleas of its constitutional powers as a court. Popfinger v. Yutte, 102 N. Y. 38, 6 N. E. Rep. 259. Even if this were not so, we would infer, in order to sustain the action of the court of common pleas, which was presumably legal, that the parties consented to the appointment, as authorized by section 90, by means of which the prohibition is inapplicable. The order appointing the referee was affirmed by the general term of the court of common pleas, and that affirmation determines that there was no lawful objection to the appointment.
Third. The defendant, as the plaintiff in the court of common pleas action, was clearly liable for the referee’s fees. He obtained a dissolution of the partnership, and an accounting. He was successful in this sense at least. The accounting was had on his application and for his benefit, and without regard to its result he reached the conclusion he sought in an accounting. He was the moving actor in the matter; and, whether the accounting turned out to his liking or otherwise, he was liable on the theory of the law laid down in Geib v. Topping, supra.
Fourth. We think the action was properly brought against the defendant, and that the suggestion by his counsel that the receiver should have been sued is without merit.
Under these circumstances, and according to prescribed practice, we reverse the finding for defendant, and direct judgment on the verdict in favor of the plaintiff, with costs. ,
McGown, J.I hold with Ehrlich, O. J., in the conclusions at which he has arrived and has stated in his opinion herein, and shall only consider the second point raised by defendant’s counsel herein. Section 90 of the Code of Civil Procedure provides as follows: “Sec. 90. Ho person holding the office of clerk * * * of a court of record * * * within either of the counties of Hew York or Kings shall hereafter be appointed by any court or judge * * * a referee, * * * except by the written consent of all the parties to the action, * * * other than parties in default for failure to appear or to plead.” The above section merely prohibits the appointment by any court or judge of any-person as referee holding the office of clerk of a court of rec*586ord. It does not expressly prohibit such person from acting as referee, and does not say that such appointment shall be void. It will be presumed that a court of competent jurisdiction acted within its jurisdiction. The presumption is always that a court or public officer acts within its or his authority, and properly discharges its and his duty until the contrary appears. Bosworth v. Vanderwalker, 53 N. Y. 599. The defendant alleges in his answer “that no written consent was given.” He offered no proof, however, to sustain such allegation, and, in the absence of such proof, we must assume that the court of common pleas, in appointing the referee, acted within the scope of its authority, and not in violation of the laws. The court of common pleas had jurisdiction of the action, the subject, and the parties. It had jurisdiction to appoint a referee. It could properly appoint its clerk such referee upon the written consent of the parties appearing, and such appointment, without such consent, would be a mere irregularity, which the parties might waive. Moore v. Taylor, 40 Hun, 58. On the appeal from the interlocutory judgment entered on November 13, 1882, the appeal was taken from “the whole and every part of said judgment, ” including the appointment of the referee. The general term by the order of May, 1883, affirmed said judgment “in all respects,” and the decision of the general term was res adjudicata, not only upon every question raised or adjudicated upon, but that could have been raised or adjudicated upon, on such appeal. Jordan v. Van Epps, 85 N.Y. 436; Patrick v. Shaffer, 94 N. Y. 430; Lorillard v. Clyde, 122 N. Y. 41, 25 N. E. Rep. 292. The defendant accepted the ruling of the court, attended before said referee with his counsel, without objecting to the power of the referee to act, and accepted his services, and produced his testimony. On the motion to confirm the report no objection was made as to the referee’s power to act, but, on the contrary, on the motion of his (defendant’s) own counsel the matter was referred back to said referee, to ascertain and to report upon other matters not embraced in the first order of reference. The referee rendered his services to the parties. The defendant herein attended before him, and accepted his services without objection, obtained the accounting asked for in his complaint through the efforts of the referee, and, from aught that appears, defendant waived therein the irregularity by acquiescing in the appointment, and by not appealing from the order of the general term of the court of common pleas. There was an implied contract on the part of the defendant to pay the referee for the services rendered what they were reasonably worth. Geib v. Topping, 83 N. Y. 46. The general term of the court of common pleas having passed upon the appointment of the referee, and being the only court authorized, in the first instance, to review the decisions of this court, we must consider their ruling binding upon us. Defendant’s counsel admitted upon the trial that the services rendered by the referee were as set forth in the bill of particulars, and that, if any sum is due, the plaintiff is entitled to recover the sum of $327, with interest from June 30, 1885, amounting in all to the sum of $430.80. The verdict directed in favor of the defendant must be set aside, and judgment ordered for the plaintiff for the sum of $430.80, besides costs.