Ubsdell v. Root — 3 Abb. Pr. 142

Majority

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UBSDELL a. ROOT.

New York Common Pleas;

General Term ; July, 1856.

Headnote

Reference.—Appeal.—Waiver.

An order to refer a cause brought to recover upon an account, is not an appealable order.

When a party proceeds to try a cause under an order of reference, he thereby waives any right to appeal from that order.

Motion to dismiss an appeal from an order of reference.

This action was brought by Ubsdell, Pierson and Lake, against one Root, to recover for goods sold and delivered to

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the wife of defendant. The account of the sales consisted of ten items.

Issue was joined, and the cause regularly brought on for trial, and being called, the plaintiffs’ attorney moved for a reference, on the ground that the trial would involve the examination of a long account. The judge was of opinion that the cause ought to be referred; and after some discussion between the attorneys, a sole referee was* agreed upon by them, and an order of reference entered by the plaintiff’s attorney.

The attorney and counsel of defendant attended before the referee, pursuant to notice of reference, and made no objection to proceeding. Testimony was taken for about four hours; most of that time being occupied by the defendant’s counsel in cross-examining the plaintiffs’ witnesses.

After this hearing, the defendant appealed from the order of reference ; and the plaintiff thereon moved to dismiss the appeal.

D. McMahon for the motion.

I. The order of reference is not appealable. The action is such that the court might of its own motion refer it to three referees; (Code, § 271,) and the defendant consented to the selection of a sole referee, instead of three. Whether an action involves the examination of a long account is a matter resting in the discretion of the judge, and his decision is not appealable.

II. Were the order appealable, still the appearance of defendant’s counsel on the reference, and his cross-examining the witnesses, amounts to a consent to the order, or certainly to a waiver of any right to appeal, or to object to it. (Renouil v. Harris, 1 Code R., 125; Comb v. Wykoff, 1 Cai. R., 147 ).

The order of reference in this case was made on motion for that purpose. The cause is one in which a reference may be made without the consent of parties, it being an action on an account. Where such is the case, it rests in the discretion of the judge who hears the motion whether to refer it or not. In such a case the exercise of such a discretion is not the subject of review by the general term, as a

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matter affecting the merits. We have provided for reviewing such orders, when the party aggrieved obtains the judge’s certificate that the question involved is of sufficient importance, or doubt, to warrant such review. As. no such certificate was obtained, we think the order appealed from was not an order involving the merits, and that no appeal will lie from it. The cases cited, (Gray v. Fox, 1 Code R. N. S., 336 ; Bryan v. Brennan, 7 How. Pr. R., 359; Dean v. The Empire State Mutual Insurance Company, 9 Ib., 69), are in point.

Even if this order was an appealable order, the defendant, by appearing on the reference and proceeding with the trial, has waived any right to appeal. If he had still intended to prosecute the appeal he should have applied for a stay of proceedings. It can hardly be considered as proper or consistent with a due administration of justice, that after the parties have appeared and tried a cause on the merits, the court should set aside all the proceedings upon a mere question of practice.

It also appears from- the papers, that the referee was agreed upon between the parties, and the subsequent proceedings on reference abundantly show that the reference was necessary.

The motion is granted.