It was decided in Phipps v. Carman (84 N.Y. 650) that the requirement of section 1019 of the Code of Civil Procedure, that a referee's report "must be either filed with the clerk, or delivered to the attorney, for one of the parties, within sixty days from the time when the cause was finally submitted," must be literally complied with to prevent a termination of the reference by notice as prescribed in that section. The court in that case affirmed an order of the General Term, which affirmed an order of the Special Term vacating a judgment entered upon a report of a referee delivered after service of notice terminating the reference under that section, notwithstanding it appeared that the referee completed his report within the sixty days, and gave written notice
to the attorney for the prevailing party that it was ready to be delivered upon payment of his fees. The decision in that case is decisive of this, which arises upon similar facts. It necessarily determined that under section 1019, a tender of the report within the time limited was not a delivery within that section. A referee is not bound to deliver his report without payment of his fees. The interest of the prevailing party will generally secure the taking up of the report. But if he fails to do so, the referee must then file it in order to prevent a termination of the reference by notice under the statute. Upon filing the report the referee may doubtless maintain an action for his fees. The acceptance of a reference is a voluntary act, and the referee may decline the reference, but if he accepts it he must rely for the payment of his fees upon the interest of the prevailing party to take up the report, and if he omits to do this, upon his common-law action to recover them, after putting himself in a position to maintain it by filing the report. This question was not decided in Geib v. Topping (83 N.Y. 46), and the allusion in the opinion in that case to this subject was casual, and the point decided is not in conflict with Phipps v. Carman
(supra).
The order of the General Term should be reversed, and that of the Special Term affirmed.
All concur.
Ordered accordingly.