[6] Though the damage sought was an incorrect measure, the plaintiff was entitled at least to nominal damage. Thomson-Houston Electric Co. v. Durant Land Improvement Co., supra.

Judgment reversed, and new trial ordered, with $30 costs to appellant to abide the event. All concur.

LECKY v. WINSTON et al.

(Supreme Court, Appellate Division, Third Department. March 5, 1919.) 1. REFERENCE 76(2)—COMPENSATION OF REFEREE-STIPULATION.

When counsel undertake to fix the rate of referee's compensation, their intention should be manifested in such a formal and authentic manner as to leave no doubt.

2. REFERENCE 76(2)—COMPENSATION OF REFEREE-SETTLING PROPOSED CASE

-STIPULATION.

Referee's compensation for settlement of proposed case is not determined by stipulation as to his rate of compensation, entered into by counsel at the beginning of the trial, such services not being within the contemplation of the parties, and the referee is entitled to statutory fees, to be paid by appellant, when work is completed.

3. REFERENCE 78-SETTLEMENT OF PROPOSED CASE-DUTY OF REFEREE. A referee cannot decline to make settlement of a proposed case.

4. REFERENCE 103(2)—CONDUCT OF REFEREE-BIAS.

Referee's conduct, subsequent to rendition of his report, may be of such a nature as to indicate a mental attitude reflecting on the integrity of his report in such a way as to require that it be set aside.

5. REFERENCE 103(2)-REFEREE'S REPORT-PREJUDICE-DISPUTE OVER COMPENSATION.

Referee, by contending before settlement of proposed case that his compensation for such services was governed by stipulation as to his rate of compensation entered into by the parties at the outset of the trial, did not show such a mental attitude reflecting on the integrity of his report as to require that it be set aside.

6. REFERENCE 44 SETTLEMENT OF PROPOSED CASE-DISQUALIFICATION OF REFEREE.

Referee, by reason of dispute with appellant prior to settlement of proposed case as to whether his compensation for settling the proposed case was governed by a stipulation entered into between the parties at the beginning of the trial, did not disqualify himself from settling the case. 7. REFERENCE 50-CONDUCT OF REFEREE-DISCRETION Of Court.

The jurisdiction of the court over the conduct of referees is largely a matter of discretion, to be exercised with a view, not only to procure absolutely just results, but also to establish in the minds of the litigants a belief that such results are being procured.

Appeal from Special Term, Ulster County.

Action by James D. Lecky against James O. Winston and another. From an order denying plaintiff's motion to set aside the referee's report, and judgment entered thereon, plaintiff appeals. Affirmed. Argued before JOHN M. KELLOGG, P. J., and LYON, WOODWARD, COCHRANE, and HENRY T. KELLOGG, JJ.

Charles Haldane, of New York City, for appellant.

A. T. Clearwater, of Kingston, for respondents.

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COCHRANE, J. The ground of this motion is alleged misconduct of the referee, occurring on the settlement of the proposed case on appeal. The alleged misconduct arises out of a difference of opinion between plaintiff's counsel and the referee as to the fees of the latter for his services in settling the proposed case. The referee was selected by the parties. At the beginning of the trial the following stipulation was made:

"It is stipulated the referee shall receive $40 a day and expenses."

The trial resulted in a report in favor of the defendants. When the proposed case on appeal and proposed amendments thereto were submitted to the referee for settlement, he thought that the stipulation applied to his services for settling the case. The plaintiff took the position that for such services the referee was entitled to no compensation. [1] In my opinion both were in error. The plaintiff subsequently indicated a willingness to sign a stipulation for the increased compensation, provided the same was paid in the first instance by the defendants, to which latter provision the defendants objected. When the trial began, it is quite improbable that the parties were stipulating with reference to an appeal. Certainly it is not clear from the stipulation that the parties were then anticipating services to be rendered subsequent to the entry of judgment, and unless such intent affirmatively appears the statutory rate should prevail.

"When counsel undertake to fix the rate of compensation by agreement, it is but just that their intention should be manifested in such a formal and authentic manner as to leave no doubt." Mead v. Tuckerman, 105 N. Y. 557, 560, 12 N. E. 64, 65.

In Butterly v. Deering, 69 Misc. Rep. 75, 125 N. J. Supp. 832, it was held that services of a referee in settling a case on appeal were not fairly within the reasonable contemplation of the parties in making a stipulation which was quite similar to the one in this case, and that for such services the referee was entitled to the statutory fees, to be paid by the appellant on delivery to him of the case as settled. The reasoning of the opinion in that case we approve. The referee should settle the case for the statutory fees to be paid by the appellant when the work is completed.

[2, 3] The plaintiff contends that a situation has arisen, growing out of the discussion and different views as to the referee's fees, which constitutes legal misconduct on the part of the referee. We discover nothing to justify this contention, unless it be the fact that the referee introduced the subject of his fees when the proposed case was submitted to him for settlement, and indicated his views that the stipulation at the beginning of the trial applied to his services on such settlement. It is quite true that it was unnecessary to allude to the subject, because the referee could not decline performance, and either the stipulation or the statute controlled as to his compensation. But there were over 200 proposed amendments to the proposed case, which required his examination and rulings. The parties manifested no disposition to lighten his labors. Subsequent events demonstrated that he correctly divined that, whatever his bill might be, it would be questioned by the

plaintiff, and he may have thought it wise to have the question settled in advance, instead of a subsequent controversy. The practice was obscure and the question debatable.

[4-6] In ordinary employments it would be regarded commendable for a person rendering services to have the question of his compensation determined definitely in advance of the services. The conduct of a referee subsequent to his report may, of course, be of such a nature as to indicate a mental attitude reflecting on the integrity of his report in such a way as to require that it be set aside. Such, however, is not the case here. Nor do we think the referee has disqualified himself from settling the case on appeal. There appears to have been no acrimony on his part toward counsel. He did not unduly persist in his contention. He made known his position in the presence of both parties, without argument or unnecessary discussion.

[7] The jurisdiction of the court over the conduct of referees is largely a matter of discretion. Leonard v. Mulry, 93 N. Y. 392, 397. That discretion certainly should be exercised with a view, not only to procure absolutely just results, but also to establish in the minds of litigants a belief that such results are being procured. There is no suggestion in the record before us, by the plaintiff or his counsel, that the referee, by reason of anything which has occurred, cannot impartially and fairly discharge the duties which remain for his performance, nor is there anything to indicate that they harbor a belief or suspicion that they will not receive just treatment at his hands. No such claim is made. Certainly the court entertains no such suspicion. The ends of justice were best promoted by a denial of the motion.

Order affirmed, with $10 costs and disbursements. All concur.

UNITED STATES REALTY & IMPROVEMENT CO. v. EWING. (Supreme Court, Appellate Term, First Department. March 6, 1919.) 1. COURTS 189(15)-MUNICIPAL COURTS-JUDGMENT-TIME FOR RENDERING. Where trial justice did not render judgment and file the same within 14 days from the date the case was submitted for decision, he lost jurisdiction, in view of Municipal Court Code, § 119.

2. LANDLORD AND TENANT ~230(8)—ACTION FOR RENT-Variance BETWEEN ALLEGATION AND PROOF.

Although, in action for rent, plaintiff introduced in evidence a lease signed "Ewing & Ewing," admission in pleadings that defendant was doing business under the name quoted, together with the uncontradicted testimony that, when defendant delivered the lease, he stated that his brother was not in the firm, made at least a prima facie case under complaint alleging that plaintiff leased to defendant,

3. TRIAL 165-NONSUIT PLAINTIFF'S TESTIMONY.

Where defendant put in no defense, but at the close of plaintiff's case moved to dismiss, on the ground that there was no proof, testimony introduced by plaintiff must be taken as true.

Appeal from Municipal Court, Borough of Manhattan, First Dis、 trict.

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Action by the United States Realty & Improvement Company against Hampton D. Ewing. Judgment for plaintiff, and defendant appeals. Reversed.

See, also, 172 N. Y. Supp. 214.

Argued February term, 1919, before LEHMAN, WEEKS, and FINCH, JJ.

George H. Gilman, of New York City, for appellant.

Babbage & Sanders, of New York City (Frederick M. Sanders and Raymond B. Fenner, both of New York City, of counsel), for respondent.

FINCH, J. Action for rent under a written lease between the parties. There have been two trials, and this is the second appeal.

[1] Inasmuch as it appears that the trial justice did not render judgment and file the same within 14 days from the date when the case was submitted for decision, he lost jurisdiction. Section 119, Municipal Court Code of New York City (Laws 1915, c. 279); Van Valis v. Charcona, 40 Misc. Rep. 226, 81 N. Y. Supp. 630; Etzel Co. v. Fairchild Sons, 169 N. Y. Supp. 504.

[2] The parties, however, have raised another question for decision, and an indication by this court as to the probable disposition may save the parties the expense and inconvenience of another trial and another appeal. The complaint alleged that the plaintiff leased certain rooms to the defendant on or about April 26, 1916, for the term of one year from May 1, 1916, under a written lease which contained an automatic renewal clause, by which, unless notice was given prior to February, 1917, the lease was to continue in force for another year. The answer, so far as it concerns this appeal, was a denial of the making of the lease. The plaintiff, in order to prove the leasing, introduced in evidence a lease signed "Ewing & Ewing, by Hampton D. Ewing," and there was testimony that when the defendant delivered this lease to the plaintiff's agent he notified the latter that Thomas Ewing was not in the firm. This testimony must be taken as true, since the defendant put in no defense, but at the close of plaintiff's case moved to dismiss on the ground that there was no proof against the defendant.

[3] On this appeal the defendant urges that, the plaintiff having alleged a contract with the defendant, proof of a contract made with a firm composed of defendant and his brother is not sufficient to sustain the action. It is admitted by the pleadings, however, that the defendant was doing business under the name of Ewing & Ewing. This, taken in connection with the uncontradicted testimony of plaintiff's agent that defendant informed him, when handing him the lease, that his brother was not in the firm, creates at least a prima facie case of individual liability against the defendant. Defendant suggests that "it does not appear there was not a partnership of the same name." Defendant does not claim there was. Certainly, if there was, it was incumbent on defendant, under the circumstances, to give proof thereof. Judgment reversed, without costs to either party, and case placed upon the calendar for causes reserved generally. All concur.

METROPOLIS WOOLEN CO. v. NEMCOF.

(Supreme Court, Appellate Term, First Department. February 19, 1919.) 1. APPEAL AND ERROR 171(3)-CHANGE OF THEORY-PLEADING.

Under Personal Property Law, § 150, the buyer is required to elect his remedy, and plaintiff, who framed his complaint upon the theory of breach of contract, and has omitted allegations essential to a cause of action for rescission, cannot claim on appeal that it was unnecessary to present all facts essential to the cause of action pleaded.

2. SALES 406-ACTION FOR BREACH OF CONTRACT-CONDITION PRECEDENT. In action upon contract of sale for failure to deliver goods called for, plaintiff must show, not only that he is ready, able, and willing to perform, but that demand for performance has been made or waived. 3. ATTACHMENT 102-AFFIDAVITS FOR ATTACHMENT SUFFICIENCY.

Even if allegations of defendant's attempted delivery of part of merchandise might be construed as setting forth the breach of contract for which plaintiff is claiming damages, defendant's breach would not be anticipatory, and plaintiff would be bound to allege and prove readiness and willingness to perform, and, since affidavits present no evidence in regard to such element of plaintiff's cause of action, no warrant of attachment should have been issued.

Appeal from City Court of New York, Special Term.

Action by the Metropolis Woolen Company against Charles Nemcof. From an order denying motion to vacate a warrant of attachment, defendant appeals. Reversed.

Argued February term, 1919, before LEHMAN, WEEKS, and FINCH, JJ.

Joel Krone, of New York City (I. Maurice Wormser, of New York City, of counsel), for appellant.

Morrison & Schiff, of New York City (Jacob R. Schiff and Samuel W. Dorfman, both of New York City, of counsel), for respondent.

LEHMAN, J. The plaintiff, on November 14, 1918, secured a warrant of attachment in an action for breach of contract for failure to deliver goods which the defendant agreed to sell to the plaintiff. The defendant thereafter moved to vacate the warrant of attachment, and appeals from the order denying his motion.

In the complaint the plaintiff has alleged:

That the parties entered into an agreement whereby the plaintiff agreed to purchase from the defendant, and the defendant agreed to sell to the plaintiff, certain goods according to sample, the goods to be "of one yard and more in length." The plaintiff then and there paid on account of said purchase price the sum of $200. Thereafter the defendant attempted to deliver part of said merchandise, and upon inspection of the same by the plaintiff it was discovered that the goods did not correspond with the sample submitted and were shorter than one yard in measure. "That the plaintiff has duly complied with all the terms, conditions, and covenants of said agreement on its part to be performed, but that the defendant has failed and refused to deliver any part of said merchandise, and has refused to return to the plaintiff the sum of $200 paid on account thereof, although duly demanded," and "by reason of the defendant's breach of said agreement, and failing to deliver the merchandise in accordance with the agreement, plaintiff has been damaged in the sum of $575."

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