First Department, July, 1921. [Vol. 197 the latter's estate were certain shares of stock of New York corporations which had been duly appraised and taxed as a part of his estate in proceedings in the Surrogate's Court of New York county in October and November, 1920. Due notice of the application for exemption was given to the State Comptroller, who appeared in opposition, but filed no affidavits and offered no proof, nor made any claim in contradiction of the matters set forth in respondent's petition. Among other things the appellant contends that the petition has no probative value inasmuch as it appears that it is not verified. The appellant is technically correct in stating that there was no verification of the petition. It is signed by the "State Bank of Chicago, William C. Miller, Trust Officer,” and following the signature we find instead of a verification an acknowledgment of the petition in the usual form appropriate to corporate acknowledgments. Since the petition is based upon information and belief without even stating any of the sources of information upon which the petitioner relies and is not sworn to, the question arises whether there was any legal proof before the court to warrant the order appealed from. It is well settled that affidavits upon a motion of this kind are in the nature of testimony. (Matter of Hyde, 218 N. Y. 55.) But since no affidavit was submitted by the petitioner, the petition had no probative value. It seems to us that the proper course will be to reverse the order and remit the proceeding to the learned surrogate to enable him to appoint an appraiser to take proof as to the facts and report to the court. CLARKE, P. J., DOWLING, SMITH and PAGE, JJ., concur. Order reversed and proceeding remitted to Surrogate's Court for further action in accordance with opinion. App. Div. 641] First Department, July, 1921. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. GEORGE STUYVESANT, Appellant. First Department, July 1, 1921. Crimes - carrying concealed weapon evidence not justifying con viction - licensee not required to have license with him while carrying concealed weapon failure to exhibit license not a basis for conviction but justifies arrest presumptive evidence of guilt. A judgment convicting the defendant of the crime of carrying a loaded revolver concealed upon his person will be reversed and a new trial granted where it appears that a license had been duly issued to the defendant and at the time of his arrest it had not been revoked. Sections 1897 and 1898 of the Penal Law do not require a licensee to have the license with him at the time he is carrying a concealed weapon. The failure of the defendant to exhibit a license, if in fact he had one, was not a basis for conviction, although it justified the officer in making the arrest. It was only presumptive evidence. APPEAL by the defendant, George Stuyvesant, from a judgment of the Court of Special Sessions of the City of New York held in and for the borough of Manhattan, rendered on the 5th day of April, 1921, convicting him of the crime of unlawfully possessing and concealing a firearm in violation of section 1897 of the Penal Law. Moses A. Sachs of counsel [Moses H. Hoenig with him on the brief], for the appellant. Michael J. Driscoll of counsel; Edward Swann, District Attorney, for the respondent. GREENBAUM, J.: There is no question that defendant on February 26, 1921, the date of his arrest, had a loaded revolver concealed upon his person and that he then exhibited no license for carrying a revolver. As matter of fact it was uncontradictedly established upon the trial that on October 16, 1920, a license had been issued to defendant pursuant to section 1897 of the Penal Law of this State by a police justice at the city of APP. DIV.-VOL. CXCVII. 41 First Department, July, 1921. [Vol. 197 Troy and that at the time of his arrest the license had not been revoked. Section 1898 of the Penal Law provides among other things: "The possession, by any person other than a public officer, of any of the weapons specified in section eighteen hundred and ninety-seven of this chapter, concealed or furtively carried on the person, or of the possession of any instrument specified in the last preceding section except as permitted therein, is presumptive evidence of carrying, or concealing, or possessing, with intent to use the same in violation of this article." The officer was justified in arresting the defendant in the absence of proof that a license had been issued to him. The possession of the revolver under the circumstances was presumptive evidence of a violation of the law. But there is nothing in either section 1897 or 1898 of the Penal Law which requires the licensee to have the license with him at the time he is carrying a concealed firearm. In People v. Meyer (194 App. Div. 822) the defendant, who drove a motor car in Brooklyn, failed to show an operator's license to the police officer when asked to do so, and was charged with violation of section 289 of the Highway Law, which provides that the failure of a licensee to "exhibit his license to any magistrate, motor vehicle inspector, police officer, constable or other competent authority, shall be presumptive evidence that said person is not duly licensed under this article." (See Highway Law, § 289, subd. 1, added by Laws of 1910, chap. 374, as amd. by Laws of 1917, chap. 769, and Laws of 1919, chap. 472.) The court held upon appeal that the failure to exhibit a license if in fact he had one was no basis for conviction. It was only presumptive evidence. To the same effect is People v. Miles (173 App. Div. 179). The judgment of conviction is reversed and a new trial ordered. CLARKE, P. J., DOWLING, SMITH and PAGE, JJ., concur. Judgment reversed and new trial ordered. Settle order on notice. App. Div. 643] THE CITY OF NEW YORK, Appellant, v. EMPIRE CITY SUBWAY COMPANY, LTD., Respondent. First Department, July 1, 1921. References fees of referee fees unenforcible - agreement that referees may fix own Code Civil Procedure, § 3296, applied — stipu lation that referees might elect to take twenty-five dollars per hour complies with Code referees not authorized to fix fees at lump sum facts on motion for retaxation too indefinite to enable Appellate Division to tax costs expense of printing opinion cannot be taxed in absence of stipulation.] The provision of section 3296 of the Code of Civil Procedure that the parties to an action may consent to a different rate of compensation for referees from that stated in the Code does not authorize an agreement or stipulation between the parties permitting the referees to fix their own fees, and such an agreement is unenforcible. However, a stipulation between the parties in effect that the referees may fix their fees at such sum as they think proper, or at their election the sum of twenty-five dollars per hour may be considered a reasonable charge and may be charged by them, is in substantial compliance with the Code to the extent that it provides that the sum of twenty-five dollars per hour shall be considered a reasonable charge. Under the stipulation in the instant case the referees were not authorized to fix a lump sum for their fees without regard to the number of hours spent in the business of the reference. The facts developed on the motion for retaxation are too indefinite to enable the Appellate Division to tax the defendant's costs. In the absence of a written stipulation of the parties there is no legal warrant for taxing the expenses of printing the opinion of the referee and extra copies, for they constitute an item of expense not included in the rules of court. APPEAL by the plaintiff, The City of New York, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 15th day of March, 1921, denying plaintiff's motion for a retaxation of defendant's bill of costs, which had been taxed by a clerk in the sum of $40,497.85. John R. Salmon of counsel [James A. Donnelly with him on the brief; John P. O'Brien, Corporation Counsel], for the appellant. Edward L. Blackman of counsel [Charles T. Russell with him on the brief], for the respondent. GREENBAUM, J.: First Department, July, 1921. [Vol. 197 This action was brought by the plaintiff for the forfeiture of defendant's system of electrical subways, and for an accounting by defendant under certain contracts subsisting between the parties to this action. The issues were referred upon consent to three referees to hear and determine. Hearings before them commenced on or about October 30, 1916. On November 29, 1918, the referees notified the parties that they were prepared to hand down their decision and that their fees had been fixed by them at the sum of $80,000. The decision of the referees as to costs provides as follows: "No costs are awarded to either party against the other. The expense of the reference, that is, fees of the referees and stenographers, and the cost of printing the opinion and report, shall be borne by the plaintiff and the defendant equally." This court upon a former appeal (191 App. Div. 603) affirmed the direction of the referees with respect to the matter of costs and in the order of affirmance awarded to the "defendant as costs in the action one-half of the amount lawfully required to be paid for taking up the referees' report and one-half of the amount lawfully required to be paid for printing the report and opinion of said referees, such amount to be determined upon taxation before the clerk." On September 22, 1920, costs were taxed by the clerk against the plaintiff at the sum of $40,497.85, being one-half of the fees paid to the referees and one-half of the amount paid for printing. Plaintiff moved for a retaxation before the Special Term, which denied plaintiff's motion, and it is from the order of denial that plaintiff appeals. The record shows that the parties stipulated in writing before entering upon the reference as follows: "It is hereby stipulated by and between the parties hereto, through their counsel and attorneys, that the statutory provision for the referees' fees be waived, and that the referees shall fix such sum as they consider proper compensation for the time and effort expended by them in the business of the reference, or at their election the sum of $25 per hour shall be considered such reasonable charge and may be charged by them." Section 3296 of the Code of Civil Procedure, which fixes ten dollars as the amount to be paid to a referee for each day expended on a reference, also provides that the parties may |