Richards v. Richards. therefore unconstitutional, so that a sale by a referee as valid (Gaskin v. Meek, 42 N. Y. 186, 188). By chapter 192 of Laws of 1874, section 1 of this act was amended so as to read as follows: "§ 1. Sales of real estate hereafter made in the city or county of New York, under the decree or judgment of any court, may be made by the sheriff of said city and county, or by a referee appointed for that purpose, by such judgment or decree; but when made by any officer other than the sheriff, no greater sum shall be charged or allowed as fees than as prescribed in section two of this act." And section 3 was repealed. As section 4, prescribing the fees of referees in partition, was not amended, the legal presumption is that it was intended to remain law. It conflicts, however, absolutely with section 1, as to the fees of officers other than the sheriff, unless it should be held that they relate to different subjects. And as the legislature cannot be considered to have intended a flat contradiction in the same act, it is but fair to presume that section 1 was intended to cover sales by referees in other than partition cases, which would be the same cases as those where the sheriff would sell (i. e., foreclosures, &c.). This is further demonstrated from the fact that section 1, as originally passed, did not include partition cases; and section 2 refers only to sheriff's fees in foreclosures (See Innes v. Purcell, 2 Sup'm. Ct. [T. & C.]543). The declaration by the court of appeals that the statute of 1869 was unconstitutional on account of sections 1 and 3 referring to subjects not alluded to in the title, did not avoid the entire act (People ex rel. Lee v. Supervisors of Chautauqua, 43 N. Y. 10; Town of Fishkill v. F. & B. Plank Road, Co., 22 Barb. 643; People v. Lawrence, 36 Id. 190, 191, affi'd in court of appeals, 41 N. Y. 137; and see cases as to tax levies, 2 Abb. N. Y. Dig. 140). Richards v. Richards. This is particularly the case, inasmuch as the provision as to the fees of referees in partition cases was not a local but a general law applicable to the entire State. The placing of a general law in a private bill saves the general law by making the act public (People ex rel. Lee v. Supervisors of Chautauqua, 43 N. Y. 10; People v. McCann, 16 Id. 58, 60; Williams v. People, 24 Id. 405, 406). This view is in opposition to that expressed by the revisers of the new statutes; but on the other hand it is sustained by Hoffman on Referees, 285. I am therefore of the opinion that the referee is entitled to receive, in addition to his disbursements (about which there is no dispute before me), the same commissions as an executor on the purchase price, $20.600, viz. A motion was made for a confirmation of this report. E. Bartlett, for the motion. A. Roe (Roe & Macklin, attorneys), opposed. LAWRENCE, J.-After much hesitation I have concluded that the referee is right in his conclusions. The bill of Mr. Chetwood will therefore be allowed as reported by the referee, and he is also entitled to the referee's fees. Daby v. Jacot. DABY v. JACOT. N. Y. Supreme Court, Chambers, First Department; January, 1877. PARTITION.-REFEREE'S FEES AND COMMISSIONS. The fees of a referee to sell in partition cases are governed by the provisions of 2 L. 1869, p. 1377, c. 569, as amended by L. 1874, p. 212, c. 192. Richards. Richards (p. 93 of this vol.) followed. Where fees on reference and disbursements for searches as to title were due from the plaintiff's attorney to the referee subsequently appointed to sell in the same partition suit,-Held, that on an adjustment of his fees and commissions for conducting the sale, his fees on the first reference, and the disbursements actual'y paid for searches, might also be allowed. Motion for adjustment of the fees and commissions. of a referee to sell lands decreed to be partitioned. Augustine W. Daby and Richard Jacot were the owners of three adjoining houses and lots in the city of New York, known as Nos. 421, 425, and 427 West Sixteenth street. Susan Allen and Thomas Brown held mortgages to the amount of $15,600 on No. 427. In June, 1875, Daby commenced a suit against Jacot, Allen, Brown, and others, for the partition of the property. While that suit was pending, and in August, 1875, the defendants Allen and Brown began a foreclosure of No. 427, and obtained a decree of foreclosure and sale in January, 1876, before a decree of partition. Before any sale under the decree of foreclosure of No. 427, the plaintiff in the partition suit obtained a stay in the foreclosure proceedings. B. C. Chetwood, Esq., having been appointed a referee in the partition suit to ascertain the title of the plaintiff and the rights of the several parties therein,, VOL. II.-7 Daby v. Jacot. reported in favor of a partition and sale of the property. He surrendered his report to the plaintiff's attorney without receiving payment of his fees and disbursements for clerk's and register's searches. Upon a decree of partition and a sale, he was appointed referee to conduct the sale. He accordingly advertised the whole property for sale on May 12, 1875. On that day two of the houses were sold-the sale of the other, No. 427, being adjourned by order of the court. It was finally sold on June 22, following, and bid in for $17,000. The three houses together were bid in by the different mortgagees for $49,450. Ten per cent. of this amount was paid to the referee, the balance of the bids being credited on their mortgages. Allen and Brown, who bid in No. 427, paid $1,700 of this. The referee claimed that he should be authorized to retain out of the $1,700 which had been paid him by Allen and Brown, who purchased only one of the houses, the sum of $345 for commissions, as follows: $680.89 A. H. Wagner, for the defendants. Allen & Brown, opposed.-I. The act of 1813, establishing and revising partition proceedings, provided that the costs and charges attending such proceedings should be first paid by the petitioner prosecuting the same, and each of the parties concerned were directed to pay their proportionate share of the costs, &c., to him, which was enforceable by execution (1 Laws of 1813, 507). II. The court uniformly assessed the fees of commissioners for partition at $3 a day under that act (8 Cow. 115; 2 Wend. 621). The Revised Statutes fixed the fees at $2 a day, and $1 for expenses. III. The rules for fees provided by law in civil actions should prevail. The fees of referees in all actions are fixed at $3 per day for each day necessarily employed in the reference, unless the parties otherwise agree (Code, § 313). No party in this action agreed to any other rate of compensation. IV. When the statute fixes a fee for services, there can be no discretion in the court as to the various items of service specified. The court has no authority to add items for services not specified in the statute (Downing v. Marshall, 37 N. Y. 380). V. The act of 1869 was designed to fix a more liberal scale for referees' fees in partition cases (2 L. 1869, p. 1377, c. 569). Under this act, the referee |