Browning v. Marvin — 5 Abb. N. Cas. 285

Majority

p. 285

BROWNING v. MARVIN.

N. Y. Supreme Court, First Department; Special Term and Chambers,

September, 1878.

Headnote

Reference. — Waives op Referee’s Oath. — Code of Civ. Pro. § 1016.

A referee appointed to hear and determine the issues in an action must take the oath prescribed by section 1016 of the code of civil procedure.

A waiver must be entered in the minutes. Even attending and refusing for another reason to go on, does not waive the objection unless a waiver is so entered.

Motion to vacate a judgment entered on the report of a referee.

This was an action by John H. Browning against Oliver W. Marvin.

The cause was referred by compulsory order at circuit, defendant not being ready for trial.

Motion to vacate the order was made on the ground that it deprived the defendant of trial by jury. Motion denied, and an appeal is pending.

Plaintiff brought on the cause before the referee, August 1, 1878. Defendant’s counsel attended and stated that he had appealed ; and refused to go on. The -referee proceeded in the defendant’s absence, and on the same day rendered a report in favor of plaintiff, on which judgment was entered August 15, 1878.

Defendant moved to vacate the judgment, because the referee never acquired any jurisdiction and had no right to take any testimony or do anything in the matter until he had taken the oath required under section 1016 of the code of civil procedure.

Henry C. Willcox, for the motion.

The oath may be waived in two ways only : First. By stipulation in

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writing signed by all the parties. Second. Orally before the referee, all the parties being present; but if orally, such waiver must be entered in the referee’s minutes. In this case no waiver was made, either in writing or orally, and no record of any such waiver appears anywhere, as it could not. The section of the code in explicit on this subject. It says the referee, before proceeding to take any testimony, must be sworn, &c., &c. (Code of Civ. Pro., § 1016; Exchange Fire Ins. Co. v. Early, 4 Abb. New Cas. 78). Judge Daly of the common pleas set aside a referee’s report and all proceedings thereunder, including a sale of property, and vacated the order of reference.

Oscar Frisbie (Oliver S. Ackley, attorney), opposed.

This motion must be granted (See Code, § 1016; Exchange Fire Ins. Co. v. Early, 4 Abb. N. C. 78 ).

There was no waiver of the oath of the referee. It was not competent for the plaintiff alone to make such waiver, and the alleged waiver was not entered in the minutes (See Code, § 1016).