In re Bennett — 21 Abb. N. Cas. 238

Majority

p. 238

MATTER OF BENNETT.

N. Y. Supreme Court, General Term, First Department;

May, 1888.

Headnote

Reference in a special proceeding ; termination thereof. ] The provision of N. Y. Code Civ. Pro. § 1019, allowing a party to elect to end a reference if a report is not filed or delivered within sixty days after submission, does not apply to a reference in a special proceeding, such as the matter of an application by petition to compel an attorney to pay over moneys to the petitioner, his client.*

Appeal from an order denying a motion to confirm a referee’s report.

The proceeding was commenced by the petitioner James Gordon Bennett against Thomas W. Pittman, to compel the latter to pay over moneys collected by him as attorney for Bennett.

A reference was ordered to a referee “ to take proof of the facts mentioned in the said petition, and of what is

* So it is held that the requirement that a judge file his decision on the trial of a- cause before him without a jury, within twenty days (R. 7. Code Civ. Pro., § 1010) does not apply where he has ordered a reference of part of the issues or a specific question.

And the requirement of Code Civ. Pro., § 719, that a motion to vacate an order of arrest, injunction, or warrant of attachment, be decided within twenty days does not apply where the motion is referred. Stafford v. Ambs, 8 Abb. N. C. 237 .

In directing a reference in any such case the court Have power to insert a clause in the order that the referee report within a given time. The effect of this will be to terminate his power by the lapse of that time (Brower v. Kingsley, 1 Johns. Gas. 334), unless the court should enlarge the time.

In Meet v. Kalbfleisch, 43 Hun, 443 , it was held that a delay of ten years in moving for a new trial, pursuant to Code Civ. Pro., § 1010, without adequate excuse, was such laches as would not justify a new trial.

p. 239

alleged on behalf of the said Thomas W. Pittman, and to report with his opinion.” The matter was finally submitted to the referee on May 11, 1885. The referee did not deliver or file his report within sixty days after submission, and on October 24, 1885, the petitioner’s attorney served a notice on the attorney for the respondent, Pittman, that he ■elected to terminate the reference.

Afterwards the referee’s report in favor of the respondent, Pittman, was filed, and a motion to confirm it was made.

The Speeial Term, in denying the motion, held that section 1019 of the Code of Civil Procedure, the reference, -which was made to take proof of the facts mentioned in the petition, was directed pursuant to the provisions of section 1015, and was terminated by the notice sent by the petitioner’s attorney electing to terminate the reference.

Section 1019 is as follows:

“ Upon the trial, by a referee, of an issue of fact, or an issue of law, or where a reference is made as prescribed in section 1015 of this act, the referee’s written report must be either filed with the clerk or delivered to the attorney for one of the parties, within sixty days from the time when the cause or matter is finally submitted, otherwise either party may, before it is filed or delivered, serve a notice upon the attorney for the adverse party, that he elects to ■end the reference. In such a case the action rtiust thenceforth proceed as if the reference had not been directed; and the referee is not entitled to any fees.”

■ Section 1015 is as follows ;

“ The court may, likewise, of its own motion, or upon the application of either party, without the consent of the other, ■direct a reference to take an account and report to the court ■thereon, either with or without the testimony, after interlocutory or final judgment, or where it is necessary to do so for the information of the court; and also to determine and report upon a question of fact arising in any stage of the

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action, upon a motion, or otherwise, except upon the plead ings.”

From the order denying the motion to confirm the report the respondent, Pittman, appealed.-

Edward C. Perkins (Christian Zabriskie, attorney), for the appellant.

John Townshend, for the petitioner, respondent.

[After stating the facts.] This motion was denied, as the order states, on the ground that the court-had no power to confirm the report, “because the same was not filed within sixty days after the matters referred to-the said referee were finally submitted to him, and the notice that the said Bennett elected to "terminate the said reference was duly served on the said referee.”

It is apparent from this language that it was solely by reason of a supposed want of power that the judge at Special Term denied the motion. This appeal, therefore, does not bring up any question relating to the contents of the referee’s report, or whether it should be confirmed or not upon the merits.

If the referee had been directed to try an issue of law or an issue of fact, or to take an account, or to determine and report upon a question of -fact in an action, the conclusion of the learned judge below would have been correct, for section 1019 of the Code of Civil Procedure permits a reference to be terminated in any of these cases where the report is not filed or delivered within sixty days from the time when the case or matter is finally submitted. But a reference to take proof in a special proceeding to compel an attorney to pay over money, does not fall within the scope of this section, and is not terminable in the manner therein prescribed. The provisions of the section are stringent, and their application .should not- be extended by construction, but should be carefully limited to

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the cases expressly mentioned therein. They relate only to references in actions as distinguished from special proceedings ; and that this matter is a special proceeding, admits of no doubt.

The order appealed from should be reversed, with costs and disbursements, and the matter remitted to the Special Term, with direction to entertain the motion and dispose of it as justice may require.

Van Bbunt, P. J., and Daniels, J., concur.