Mark v. City of Buffalo (87 N.Y. 184, 1881)

Finch, J.

We have here a question of costs; in magnitude and importance it is unusual and remarkable. The plaintiffs sued the city of Buffalo and the board of supervisors of Erie county to recover one hundred and fifty thousand dollars, alleged to be due him for granite, dressed and prepared for use in the construction of a city and county hall, about to be erected in Buffalo. The action was referred to three referees, who awarded to the plaintiffs twelve thousand one hundred and forty-seven dollars and sixty-two cents damages. Judgment was entered in plaintiffs’ favor for this amount with interest, and the costs of the successful party were taxed at twelve thousand and twenty-five dollars and forty-eight cents, thus very nearly doubling the plaintiffs’ recovery. The principal item, going to make up this very serious bill óf cosis, consists of the fees of the three referees. They were taxed at ten thousand and seven hundred dollars, being at the rate of fifty dollars per day to each of the referees. The right to make this charge was founded upon a written stipulation, signed by the attorneys of the respective parties, and fixing that rate of compensation. • The allowance is now contested by the defendants, upon the ground that the attorneys had no power to bind their clients by the stipulation, and upon the further ground that such stipulation is within the general control of the courts, and one against which they can relieve. We should be glad if, upon any just ground, we could reduce an allowance which seems to us open to possible criticism,, as being in excess of a reasonable and fair compensation for the services performed. But we ■ do not discover any lawful remedy, and feel compelled to sustain a charge which the defendants very warmly resist, and not without some appearance of reason. The trouble lies in the stipulation signed by their own attorneys. The old Code and the new concur in fixing a definite allowance for each day spent in the business of the reference (Code, § 313; Code of Civil Procedure, § 3296), but each contains a provision that a different rate of compensation may be fixed by the agreement of the parties, or their consent in writing. It is now said that the parties only, and not their attorneys, can give the required assent. The contrary was held in Chase v. James (16 Hun, 14), and, at least, assumed and plainly indicated by this court in First National Bank v. Tamajo (77 N. Y. 478). In that case we decided that the attorneys could not agree to leave the "referee to fix his own rate of compensation, but, if an agreement is made at all for a larger rate, it should be made upon the “ judgment and professional responsibility ” of the “ counsel,” who “ could agree upon a larger rate.” In all that properly relates to the conduct of a trial, the attorney represents the party, and is his authorized agent. (Gaillard v. Smart, 6 Cow. 385; Barrett v. Third Ave. R. R. Co., 45 N. Y. 635.) The attorney’s agreement and stipulation within the boundaries of that authority is the agreement and stipulation of the client, and binds the latter' as if he himself had personally made it. The stipulation as to the fees of referees is a proceeding in the conduct of the trial, and one in which the attorney may and should represent his client.

Generally, the latter is not at all cognizant of the just and proper reasons for increasing the statutory rate; still less capable of wisely determining how far that excess should extend. We are of opinion that such an agreement is within the general authority of the attorney, and when made by him is the consent and agreement of the party whom he represents and for whom he acts. In the present case other facts concur to justify the force given to the stipulation. It was made openly and publicly ; the attorney wh