In an action to foreclose mechanics’ liens, the court, upon consent of the parties, made an order dated December 21, 1954 appointing a Referee to hear and determine the issues of fact and law therein. Following three hearings held on March 28, April 4 and 8, 1955, a transcript of the testimony comprising some 340 pages was furnished to the Referee, following which he made and filed his report, dated June 1, 1955 separately stating his findings of fact and conclusions of law.
The motion of the defendants Adler is in all respects denied since upon the affidavits submitted in support of and in opposition thereto, there is insufficient evidence of any improper conduct on the part of the Eeferee warranting his removal, the setting aside of his report and restoring the cause to the calendar for a new trial. At the opening of the third and last hearing on April 8, 1955, the attorney for the plaintiff suggested that the parties waive the statutory provisions for the Eeferee’s fees and that the same be fixed by the court. All attorneys, with the exception of the attorney for the Adlers, consented immediately. Said attorney did so after a short discussion. Thereupon the following stipulation and consents were spread upon the record:
“ Mr. Zaleski : It is hereby stipulated, consented to and agreed by all Counsel involved in this proceeding, that the statutory limit of the Eeferee’s fee herein, be and the same is hereby waived;
‘ ‘ And it is further consented to by all Attorneys that the fee of the Eeferee be set and determined by the Court.
“ Now, I understand that is the stipulation. There is no objection to that, Mr. Saxstien?
“ Mr. Saxstien: That’s right.
‘ ‘ Mr. Zaleski : Thank you very much.
‘' Mr. Eaffe : I consent to it.
‘ ‘ Mr. Stark : I consent to it. ’ ’
Even if the version of the proceedings with reference to the waiver of statutory fees contended for by the attorney for the Adlers were credited by this court, notwithstanding that it is not reflected in the stenographer’s minutes, it would still be improvident to grant them the relief they seek since they took no steps to disqualify the Eeferee until after he rendered his decision adversely to them. The stenographic minutes of testimony adduced at the third hearing subsequent to the stipulation
As was stated by the Appellate Division, First Department, in Fisher v. Fisher (223 App. Div. 19, 21): “A party waives any disqualification not involving corruption by proceeding with the reference after the cause for disqualification has become known to him. * * * The rule as to setting aside
a referee’s report because of disqualification cannot be invoked by a party who knew of the disqualification and proceeded with the reference. ’ ’ Miles Laboratories v. American Pharmaceutical Co. (261 App. Div. 108) is not to the contrary. There, unlike the situation in the case at bar, the Referee himself requested, when the testimony had been taken in full and the briefs submitted by both sides, that he be paid a fee in a definite, certain amount at that time. The court held that in so doing he had disqualified himself, notwithstanding the failure of the parties promptly to move to disqualify him since such failure was fully explained and excused.
Now as to the motion of the plaintiff for judgment in conformity with the report of the Referee and for the other relief described above. Inasmuch as the reference herein was one to hear and determine the issues of fact and law presented in this action, there was transmitted to the Referee all the powers, duties and obligations of this court in respect of the matters referred. (Civ. Prac. Act, §§ 469, 470; Morange v. Meigs, 54 N. Y. 207; Schuyler v. Smith, 51 N. Y. 309; Albany Brass & Iron Co. v. Hoffman, 30 App. Div. 76; Abrams v. Textile Realty Corp., 197 Misc. 25.) That included the power to award or withhold discretionary costs. (Bent Steel Co. v. Western Elec. Co., 274 App. Div. 888; see, also, 86 N. Y. S. 2d 344, 353, affd. 274 App. Div. 1066; Twin Realty Corp. v. Glens Falls Portland Cement Co., 225 App. Div. 515.) The disposition by the Referee of all matters referred to him to hear and determine stands as the decision of this court and the only way to review it is by appeal to an appellate court. (Bedford v. Hol-Tan Co., 140 App. Div. 282, 285-286; Kiernan v. Consolidated Gas & Gasoline Engine Co., 121 Misc. 403.)
The foregoing principles, however, do not apply ^ to the question of the Referee’s compensation and the appointment of a referee under whose direction the property under fore
Settle order on two days’ notice.