Opinion
September 27, 1962
Order, entered on January 16, 1962, unanimously modified on the law and on the facts, without costs, to provide that the compensation of the Referee appointed by the order entered November 30, 1961, shall be borne in the first instance by the parties jointly, and the amount paid by any party may be taxable or allowable as costs and disbursements herein to the extent provided or authorized by statute; and to further provide that the deposit or additional undertaking directed to be made or filed by the plaintiff shall secure the payments herein directed to be made by plaintiff and any and all costs taxed or allowed as against plaintiff; and the order of November 30, 1961, is modified accordingly; and the order, entered January 12, 1962, is otherwise affirmed, without costs. Under the special circumstances here, it was proper for Special Term, in the exercise of its discretion, to appoint a Referee to conduct the examinations before trial. We do not construe the order of the court as placing upon the plaintiff final responsibility for payment in full of all compensation allowed to the Referee. It is certainly not clear that the court intended at this time to direct the payment by plaintiff of such compensation. In any event, on the record here, such a direction would not be justified. The direction in the order requiring plaintiff to furnish additional security for costs was proper (Civ. Prac. Act, § 1528), and it was also proper to direct dismissal of plaintiff's complaint in the event the security was not furnished (Civ. Prac. Act, § 1529). Settle order on notice.
Concur — Breitel, J.P., Rabin, Valente, Eager and Steuer, JJ.