Supreme Court, March, 1911. [Vol. 71. tion - the labor legislation throughout the country might reasonably be presumed to be uniform. This plaintiff is the financial secretary of the New York branch of the Granite Cutters' International Association of America. The association, I take it, is interested in the welfare of the granite cutters in every State of the Union, and seeks uniform legislation where like conditions prevail. The Labor Laws, like the Employers' Liability Acts, have been a matter of gradual growth in the various States and have been reasonably uniform in their aims and purposes. While, therefore, no guide for the interpretation of the New York statute, it may be of some help, in determining the purpose and intent of the statute, to refer to the Labor Law of Massachusetts (Laws of 1907, chap. 269, found in the supplement to the Revised Laws of the Commonwealth of Mass., p. 828) which reads: "Every contract, excluding contracts for the purchase of materials or supplies, to which the Commonwealth, or of any county therein, * *** is a party, which may involve the employment of laborers, workmen or mechanics shall contain a stipulation that no laborer, workman or mechanic working within this Commonwealth in the employ of the contractor, sub-contractor or other person doing or contracting to do the whole or a part of the work contemplated by the contract, shall be requested or required to work more than eight hours in one calendar day, and every such contract which does not contain this stipulation shall be null and void." It will be noted that this law specifically states that it only refers to workmen within the State. Such is the policy of Massachusetts; such clearly to my mind is the meaning of the Labor Law of New York. Counsel for the plaintiff insists, very strenuously, that, by taking the work into adjoining States, the purposes of the constitutional amendment of 1905 and the Labor Law of 1909 can be defeated. If individuals have that liberty of contract which enables them to provide that the work contracted for shall be done at a particular place, it may be difficult to understand why the State or a municipality thereof has not the same liberty of contract. When it comes to the question whether the Misc.] Supreme Court, March, 1911. Legislature can compel the municipality to require the cutting, trimming and dressing of stone to be done within the State of New York, it may be that the constitutional amendment of 1905 is not broad enough to extend the power of the Legislature to such regulation and control. However, this matter is not before me and must finally rest, should such legislation be re-enacted, with the highest court of this State to again consider its own cases in the light of the Atkin case (Atkin v. Kansas, 191 U. S. 207) and the constitutional amendment of 1905. For the reasons above stated the motion for injunction herein is denied. Motion denied. THE TOPIA MINING COMPANY, Plaintiff, v. LEWIS WARFIELD, Defendant. (Supreme Court, New York Special Term, March, 1911.) Reference: Qualification and tenure of referees - Removal - Bias or misconduct of referee: Compensation of referees - In generalWhen right to compensation accrues. A referee's right to fees does not accrue until he has completed the reference and filed or delivered his report; and where a referee requests payment of part of his fees before he is entitled thereto and one of the parties complies with the request, the other party who does not comply is placed at a disadvantage and upon his motion the referee will be removed and another will be appointed in his place. MOTION to remove a referee and to appoint another in his place. William Harmon Black, for plaintiff. Underwood, Van Vorst & Hoyt, for defendant. George Edwin Joseph, for referee Supreme Court, March, 1911. [Vol. 71. PAGE, J. Shortly after the commencement of the hearings before the referee, the parties stipulated upon the record that the statutory fee of ten dollars be waived and that the referee receive ten dollars per hour or fraction of an hour in each. session, the costs to be taxed by the successful party against the other. After the reference had proceeded for a year and a half, the referee wrote to the attorneys for the respective parties, requesting each party to send him five hundred dollars on account of his fees. The plaintiff complied with this request and promptly sent his check for that amount to the referee. The defendant declined, calling attention to the fact that the stipulation called for the referee's compensation to be paid by the successful party. Upon inquiry, the referee informed the defendant's counsel that the plaintiff had made the payment requested. Thereupon the defendant makes this motion for the removal of the referee. On the hearing the court suggested that, as a large amount of testimony had been taken, the parties should stipulate that the testimony so far taken should stand, but not the rulings of the referee; and decision of the motion has been withheld to enable such a stipulation to be made. It appears, however, that the parties have been unable to agree. The referee, at the time he requested a payment on account, had no right to his fees. It is well settled that, under ordinary circumstances, a referee's right to fees does not accrue until he has completed the reference and filed or delivered his report. Hebard v. City of New York, 137 App. Div. 752, and cases there cited. The stipulation in this case expressly provided that they were to be paid by the successful party, thus clearly showing that they were not payable until the final determination of the reference. The request for the payment put the defendant in an embarrassing and disadvantageous position. While it may be that the referee could, as he claims, fairly determine the questions uninfluenced by the fact that the plaintiff had complied with his request and the defendant had not, it cannot be said that others may not fairly doubt it. No such doubt should be allowed to exist in the absolutely fair and unbiased judgment of a judicial officer. It would be manifestly improper to compel the defendant to Misc.] City Court of New York, March, 1911. proceed and submit his case to the determination of this referee. The motion will, therefore, be granted, the referee removed, and Edward Sandford, of 26 Exchange place, appointed referee in his place and stead. No costs. Settle order on notice. Motion granted. LIPPMANN D. GIBBS, Plaintiff, v. Louis J. KAHN, Defendant. (City Court of the City of New York, Special Term, March, 1911.) Stay of proceedings - Interlocutory stay-Stay to await event of another proceeding. Where an action is brought in the City Court of the city of New York to recover for work, labor and services in dyeing skins, and actions are pending in the Supreme Court between the same parties by the owner of the skins against the dyer for damages for the latter's negligent and unskillful performance of the work, the action in the City Court will be stayed until the determination of the Supreme Court actions upon the defendant's giving a bond to secure any judgment the plaintiff may obtain in the action in the City Court. MOTION by the defendant to stay all proceedings in this action on the part of the plaintiff until the entry of final judgments in the two actions of Louis J. Kahn v. Adolph Hollander and Harry Hollander, pending in the Supreme Court, New York county. Goldsmith, Rosenthal, Mork & Baum, for plaintiff, opposed to motion. David Bernstein, for defendant, for the motion. FINELITE, J. Defendant prays that an order be granted staying the trial of this action until an action brought between the plaintiff's assignors and the defendant in the Supreme Court is tried. The action in this court is brought by the plaintiff on the assigned claim of Adolph Hollander City Court of New York, March, 1911. [Vol. 71. and Harry Hollander to recover of the defendant the sum of $549.35 for alleged work, labor and services performed by his assignors on and between the 28th day of March and the 29th day of June, 1910. The complaint in this action was served on February 6, 1911. Six months prior thereto two actions were instituted by this defendant in the Supreme Court, New York county, against the plaintiff's assignors, to recover the sum of $1,500 for damages sustained by him. by reason of the improper dyeing and dressing of 2,000 marmot skins by said plaintiff's assignors, and the sum of $2,691.75 for the conversion of 1,589 raw marmot skins by said plaintiff's assignors. Defendant contends that the work, labor and services claimed to have been performed by the plaintiff's assignors, as set forth in the complaint in the action in this court, is the very work, labor and services involved in the two actions pending in the Supreme Court. From reading the complaint of the Supreme Court actions with the complaint in this action, the subject-matter herein involved is in substance the subject-matter therein involved; and the actions pending in the Supreme Court have been at issue for some time past. Defendant prays that an order may be granted staying this action until judgments are rendered in the Supreme Court actions. The plaintiff herein is an employee of his assignors and, in bringing this action, is attempting to procure a judgment in advance of the trial of the Supreme Court actions. The amount involved in this action sought to be recovered is the sum of $549.35. The sum sought to be recovered in the Supreme Court actions is the sum of $2,691.75. The actions pending in the Supreme Court embody the litigation arising out of the subjectmatter of which the action pending in this court is part. If the defendant succeeds in the Supreme Court actions, it may be res judicata in so far as the alleged work, labor and services concern the subject of this action. It has been held that it was proper for such an order to issue, even though the parties may not be identically the same in both courts. In De La Vergne Machine Co. v. New York Brooklyn B. Co., 125 App. Div. 649, 650, Gaynor, J., says: "There is no narrow technical rule that the issues and parties must be |