104 N.Y.S. 429 | N.Y. App. Term. | 1907
All defendants were sued, as individuals. The appellants are, and have been since early in 1905, administrators of the estate of Agnes C. Taylor, deceased, who died intestate. In 1905, in New York county, in the Surrogate’s Court, said Davies obtained an order to show cause why the bond of said administrators should not be increased. The administrators opposed that motion, and the Surrogate’s Court, on its own motion, by order of July 11, 1905, directed a reference to John S. Jenkins, as referee, to take evidence and report with his opinion, with all convenient speed. The parties met — the appellants as administrators — to take evidence before the referee, on August 23, 1905, and then this stipulation was made in the minutes, as follows: “ It is stipulated by and between the parties that Clarence Bonynge be employed as stenographer, and that he furnish one copy of the minutes, and that his fees (at the rate of twenty-five cents per folio, and five dollars per diem in case the testimony taken at any one hearing does not at the folio rate aggregate five dollars, or in case two hours’ notice of adjournment be not given) be made a part of the referee’s fees, and paid out of the estate on the taking up of the referee’s report.” This stipulation was received in evidence by consent. It was never changed, and the referee and stenographer acted under it, to the end of the reference. The evidence was closed November 8,
“ Surrogate’s Court.
“ County of New York.
“ Estate
“ of "
“ Agnes C. Taylor, Deceased.
“ Sir: .Take notice that the administrator and administratrix in the above entitled estate have retained me as attorney and counsel and I hereby appear for them herein; and that they elect -to end the reference herein to John S. Jenkins, Referee, in pursuance of sections 2546 and 1019 of the Code of Civil Procedure, because no report has been filed or delivered as therein specified.
“Dated, June 1, 1906.
“ Yours &c.,
“Sanford S. Gowdey, ,
' “ Office & P. O. Address, “Manhattan, City of New York.
“ To Leman B. Treadwell,
" Attorney f or adverse party Devies "
Seabury and Brady, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellants to abide event.