Foster v. Bryan — 16 Abb. Pr. 396

Majority

p. 396

FOSTER a. BRYAN

Supreme Court, First District; Special Term,

December, 1863.

Headnote

Reference.—Limit of Hme to Report.

A referee’s report, made more than sixty days after the cause was finally submitted, is not void.

The provision of section 273 of the Code of Procedure, as amended in 1862,—that, in the absence of order or stipulation otherwise, the referee or referees appointed in an action shall make and deliver a report within sixty days from the time the action shall be finally submitted ; and, in default thereof, said referee or referees shall not be entitled to receive any fees, and the action shall proceed as if no reference had been ordered,—is directory. By a delay of more than sixty days the referee does not lose his power to make a valid report, if neither party takes any step manifesting an intention to proceed as if no reference has been ordered.

Where the referee testified that both parties had consented that he might take his time to report,—Held, that he was entitled to his fees, notwithstanding delay.

Motion to set aside a report.

The facts appear in the opinion.

F. Fart, for the motion.

Mr. Cummi/ns, opposed.

The referee failed to deliver his report within sixty days from the time the action was 'finally submitted to him; but no step was taken by either party to proceed in the action as though no reference had been ordered, until after the report was made and delivered. The defendant, against whom the referee has"reported, now insists that the report is void, and that the referee had lost all right to make any report in the action by his neglect to report within the time prescribed by section 273 of the Code.

The clause in question was added to this section in 1862. It is remedial in its character, and must be construed liberally for the benefit of the public. It is also directory. It contains no

p. 397

words negativing the validity of a report made after the expiration of sixty days. The referee forfeits his fees hy his neglect, hut this is a penalty imposed only on him.

It is the right of either party to proceed as though no reference had been ordered. But in this case neither party availed himself of the right. Both waited till the report had been delivered, without attempting to proceed in the action.

There is no limitation imposed upon the power of the referee to make a valid report, although more than sixty days have elapsed, unless -one of the parties has taken some step manifesting an intention to proceed as though no reference had been ordered. (People a. Allen, 6 Wend., 487 ; Gale a. Mead, 2 Den., 160 , and other cases there cited; Thomas a. Clapp, 20 Barb., 165 .)

It is not a condition precedent to its validity that the report be made within sixty days. (People a. Holley, 20 Wend., 481 .)

The motion to set aside the report and the judgment is denied, but, as the question is novel, without costs.

The referee swears that the counsel for both parties consented that he might take his time to make his report.' This answers, I think, the objection to the adjustment and allowance of the referee’s fees.