p. 290differences by a compromise, and understanding that the suggestion was accepted by both counsel,.he desisted from further examination of the case, until December 29, when he was informed that a compromise could not be effected.
He then resumed his examination, and, on January 4, 1870, defendant’s attorney served the following notice upon him and on plaintiff’s attorney:
“ Hew York, January 4th, 1870.
“You will please to take notice that the defendant in this action will proceed therein as if no reference had been ordered therein.”
Later, on the same day, plaintiff’s attorney served a notice requiring him to make his-report, notwithstanding, whir" ^ ¿lid, and delivered it on January 7, 187(3.
The report ■was in favor of the plaintiff, judgment was entered on the report, and the defendant moved at the special term to have the report set aside, which motion was denied, and the defendant appealed to the general term, where the order denying the motion was affirmed.
An appeal was then taken to this court.
Wheeler JS. Peclcham and B. Q. Brahe, Jr., for defendant, appellant.
I. The order is appealable (Code, § 11, subd., 4). It affects a substantial right, i. e., the right to a new trial. It is not a question of discretion, but simply of construction of Code, § 27. It is an interlocutory proceeding, because a proceeding between the summons and the judgment (Bouv. Law Dict., tit. “ Interlocutory”). It is a question of practice. Plaintiff was irregular in taking action on the report after the service of the notice.II. The notice of election to end the reference was sufficient. The form of the notice is not prescribed. It is sufficient if it inform the other side that the defen
p. 291dant elects to end the reference. A determination to proceed as if no reference had been ordered is inconsistent with anything bnt an election to end the reference. Notice of trial at the' circuit has been held a sufficient notice of an election to end the reference (Livingston v. Gidney, 35 How: Pr., 1; Niles v. Maynard, 38 Id., 390, General Term, 5th Dist).III. The case was “finally submitted” on November 3. On that day the referee had a right to consider and to decide the case. When he had such right the case was “finally submitted.” The request for the plans did not reopen the case any more than if the referee had lost them. Nor did the suggestion by the referee, made separately to the attorneys for the respective parties, have that effect. It was extra-judicial; not a proceeding in the cause; and it was declined prior to the expiration of sixty days. Such excuses, in themselves and of their own force, are not effectual to give jurisdiction to a referee, which the Code provides that he has lost by the lapse of time and the service of notice. It is the right of such party giving the notice so to proceed. And if it be his right, it is then too late to plead excuses which would have been sufficient ground for extending the time before the right accrued. Lapse of time and notice given, end the jurisdiction. It is like the lapse of four days after submission to a justice of the peace (Watson v. Davis, 19 Wend., 371 ; Young v. Rummell, 5 Hill. 60 ; 7 Id., 503). Like a submission to arbitration with a time fixed for making the award (In re Swinford, . 6 Maule & S., 226; Mason v. Wallis, 10 B. & C., 167 ; 3 Man. & R., 85). The cases reported on this clause are 35 How. Pr., 1 , Gould, J., Special Term; Litch v. Brotherson, 25 Id., 407, General Term, 4th Dist.; Foster v. Bryan, 36 Id., 164, N. Y. Special Term ; Mantles v. Myle, Id., 409, General Term, 8th Dist. ; Niles v. Maynard, 38 Id., 390, General Term, 5th Dist.
p. 292IV. Even if the Court had the power to relieve the referee and the party after lapse of time and notice given, it would yet be no defense to this motion. It is' a relief needed by the other side, and for which they must make an affirmative motion for leave to make and file a report. These excuses are no answer to our motion to set aside a report made without leave. The other side cannot be allowed to be the judge of the sufficiency of their own excuses, and to take the report at their peril.Henry H. Rice, for plaintiffs, respondents.
I. No notice of the election to end the reference has been served; and until such notice is served, the action cannot proceed as though no reference had been ordered.II. The case was not finally submitted to the referee until December 3, 1869, when he received the plans and exhibits which were used on the trial. On January 7 following, he made his report. The learned Justice (Pbatt), before whom the motion was first* made to set aside the report, held, “ That a cause cannot be said to have been submitted until all the evidence used on the trial was submitted, although the parties supposed it was submitted when summed up.”III. A final submission of a case is clearly when all the testimony, exhibits, and briefs are handed to and left with the referee, so as to enable him to consider and decide the case. And not until that event happens, can a case be said to be finally submitted. The case could never have been decided without them.IV. Under the amendment requiring a referee to report within sixty days after a case was finally submitted to him, if one of the parties by stipulation, or by any other act, induces the referee to delay the making of his report beyond the sixty days, and during such delay proceeds with the action as if no reference had been ordered, it would be competent for the court,
p. 293on motion, to prevent such procedure, and allow the report to be made after the sixty days had expired (Supreme Court, 1864, Niles v. Maynard, 28 How. Pr., 390 ). After the plans were submitted, the referee was led to believe that the case would be settled by the parties out of court, and he desisted from the further examination of the case until he was apprised, on December 29, 1869, by the defendant’s attorney, that the plaintiff’s attorney had informed him that the plaintiff would not make any compromise of the case.V. This was a waiver by the parties of the right to exact a report within the sixty days. Where the parties have once waived, as by the provisions of the statute they are enabled to do, the right to exact a report within the sixty days, there is nothing within the statute which declares that the report may be set aside, or that any other particular consequence shall result from the failure of the referee to report within the extended time. If the parties surrender the right to require a report within sixty days, they cannot by any stipulation control the action of the referee (Mantles v. Myle, 26 How. Pr., 409 ; Litch v. Brotherson, 25 Id., 407).VI. The amendment of this section was intended to expedite decisions in referred cases, and to enable either party to enforce promptness, but not to take away from parties and the courts the control of the practice in such cases. The delay in this case was not in any sense the fault of the referee, and was not caused by any act of his, and he should not be punished for it, by depriving him of his fees for two years’ labor spent in the reference.VII. If attorneys seek to effect a settlement of a case between the parties, during the sixty days, and thereby induce the referee to suspend the consideration of the case in the mean time, in the expectation that it would be compromised, and such compromise falls through, the court will not punish the referee, by set
p. 294ting aside Ms report, and depriving Mm of Ms fees, for not making it within the sixty days.VIII. The court may, in its discretion, under its general power to enlarge the time for doing any act, deny a motion to set aside a report of a referee for being made after the sixty days’ limit (Halsey v. Carter, 6 Robt., 535 ; Clapp v. Graves, 9 Abb. Pr., 20 ; Sheldon v. Wood, 14 How. Pr., 18 ; Litch v. Brotherson, 25 Id., 407).IX. The order is not an appealable one. It does not affect a substantial right in the action, and does not in effect determine the action, or prevent a judgment from which an appeal might be taken; neither does it discontinue the action. Judgment has already been entered upon the report of the referee, from which the defendant has appealed to the general term, which appeal is now pending in the second department.The order appealed from affected a substantial right, was interlocutory, and involved no question of discretion ; it was, therefore, made appealable to this court, by the Code, § 11, as amended in 1870.
Section 273 of the Code, as amended in 1866, among other things, provides that a referee to whom a cause has been referred for trial and determination, shall make and deliver a report within sixty days from the time the action shall be finally submitted to him, and that, in default thereof, and before the report is delivered, either party' may serve notice on the opposite party, that he elects to end the reference ; and that thereupon the action shall proceed as though no reference had been ordered ; and the referee shall not, in such case, be entitled to any fees. A case is finally submitted to a referee when the trial is closed, and the referee is empowered to proceed immediately to consider and determine the case. Within this rule,
p. 295this case was finally submitted, to the referee November 3, 1869. Nothing thereafter remained, to be clone by either of the parties to authorize the referee to decide the case.
The form of the notice to be served by the party intending to end the reference is not prescribed by statute. ■ Any notice, therefore, distinctly giving the opposite party information that the party serving the notice has elected to end the reference, is sufficient.
The notice served January 4, 1870, by the defendant’s attorneys, gave this information. That notice was as follows: “You will please take notice that the defendant in this action will proceed therein as if no reference had been ordered therein.” The plaintiff’s attorney could not fail to understand from this that the defendant had elected to end the reference.
The sixty days from the final submission of the cause to the referee having elapsed, and no report having been delivered by the referee at the time of the service of this notice, the power of the referee thereafter to make or deliver a report was terminated by such notice.
The subsequent delivery of the report by him was without authority of law and void, as much as the rendition of a judgment by a justice of the peace more than four days after the submission of the case to him.
The judgment entered upon the report would not, like the judgment of the justice, be void, for the reason that it is legally regarded as a judgment rendered by the court; and the court having general jurisdiction to determine'the case by final judgment, such judgment, however erroneous, is valid until set aside or reversed.
, It is insisted by the respondent that the case should not be regarded as finally submitted November 3, for the reason that it was thereafter discovered by the referee that the plaintiff’s counsel had neglected to
p. 296deliver to and leave with the referee certain exhibits given in evidence by him, and certain calculations made by the counsel, and used by him in summing up the case.
The omission of the counsel to furnish these papers to the referee, did not suspend his power to decide the case, and, consequently, did not prevent the running of the time limited for making the decision.
What was said by the referee to the parties, in regard to settling the case, after its submission to the referee, produced no such effect. When, after the submission of a case, the parties by their act reopen the the trial for any purpose, thereby suspending the power of the referee to decide, the time within which the report must be made will commence running when the power of deciding is finally conferred upon the referee.
It is insisted by the counsel for the respondent, that the denial of the motion to set aside the report, should be sustained upon the ground that, in such denial, the court, in the exercise of its discretion, came to the con - elusion that it was a proper case to enlarge the time for the referee to deliver his report.
This position cannot be sustained. After the jurisdiction of the referee has ceased by the service of the notice, the order referring, and all subsequent proceedings, are a mere nullity, the same as though not existing.
The court has no power to render them valid by an order enlarging the time for delivering the report or otherwise. The statute is that thereupon the action shall proceed as though no reference had been ordered.
Had the court power in any way to prevent the action from so proceeding, it would, when exercised, effect a repeal of the statute. The court has no such power.
In the present case I should have been gratified could I have come to a different conclusion, as the report was, in fact, delivered in a few days after the time limited for that purpose, and the facts furnished a
p. 297good excuse for the delay, if the court had power to excuse it. But the statute is plain in its requirements, and the duty of the court is fairly to apply and carry it into effect. ■ ■
The order appealed from must be reversed with costs, and an order entered granting the motion of the defendant to set aside the report.
All the judges concurred. .
Order reversed, and motion granted with costs.