Crew III, J. (dissenting). We respectfully dissent. While it is clear that CPLR 8003 (a) provides that a court may fix a different compensation than that statutorily provided for, we believe that such compensation must be established in the order of reference as required by CPLR 4321 (see, Scher v Apt, 100 AD2d 582, lv dismissed 63 NY2d 866). To hold otherwise would render CPLR 4321 nugatory. To the extent that Matter of O’Dwyer v Robson (103 AD2d 1036) holds otherwise, we disagree.* However, by so holding we do not believe that the *396Referee’s fees in this case must be set in the amount of $450 as urged by the intervenors. In Scher v Apt (supra), the Referee had submitted an affidavit of services rendered which merely reflected the number of hours devoted to the reference. Because the Referee had died and it was therefore impossible to conduct a hearing to determine the number of days actually expended in the business of the reference, the court established the Referee’s fees by dividing the number of hours spent in the business of the reference by a six-hour work day. In the case at bar, the Referee has submitted a very detailed affidavit reflecting not only the hours spent but the days comprising those hours. From a review of that affidavit, this court is able to ascertain the time actually and necessarily devoted to hearing and determining the questions presented. While it is clear that many of the days in question do not comprise a full working day, it has been recognized that a Referee does not have to work a full day to receive compensation; it is sufficient if any portion of the day is devoted in the business of the reference (cf., Mead v Tuckerman, 105 NY 557, 559; 8 Weinstein-Korn-Miller, NY Civ Prac ¶ 8003.02). Accordingly, we would award the Referee $1,300 for 26 days actually and necessarily devoted to hearing and determining questions presented plus $139.20 for disbursements.
Mikoll, J. P., concurs. Ordered that the judgment is affirmed, with costs.
Interestingly, the Fourth Department seems to have previously recognized the need for a provision for a Referee’s fee in the order of reference if the ultimate fee is to vary from the statutory per diem provided for in CPLR 8003 (a) (see, Rosen Trust v Rosen, 53 AD2d 342, 366, affd 43 NY2d 693).