Thiesselin v. Rossett — 3 Abb. Pr. 54

Majority

p. 54

THIESSELIN against ROSSETT.

Headnote

Reeebee’s Bepobt.—Extension oe Time.

Where the parties to an action pending before a referee stipulate that he may take moré time for making and filing his report than the sixty days prescribed by the statute, his report will not he set aside as made too late, because he exceeds the time mentioned in the stipulation.

When 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 in 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..

What constitutes an. act indicating the intention of a party to disaffirm the right of a referee to deliver a report after the expiration of the time pre1 scribed therefor by law—considered.

Appeal from, an order denying a motion to set aside the report of a referee.

p. 55

This action was brought by John P. Theissetin against John D. D. Bossett; and was referred to a referee for trial.

The referee being unable to make his report within sixty days, as prescribed by the Code, obtained from defendant’s attorneys a consent extending the time within which to report, until the 4th day of July, 1863, and subsequently another further extension until December, 1863. He failed to make his report within the time granted by the extension and the defendant and his attorney refused to grant any further time. On the 14th day of February, 1866, he made a report giving judgment against defendant. The defendant obtained ap order to show cause why the report should not be set aside.

The motion was argued at April Term, 1866, before Judge Caedozo, who denied it. The following opinion was delivered by him at Special Term.

Cardozo, J.

I am inclined to the opinion thát the report of the referee was regularly made.

The statute says that the report must be made “within sixty 'days from the time the action shall be finally submitted,” unless the parties stipulate otherwise.

The parties in this case have stipulated otherwise.

They told the referee he need pot report Avithin the sixty days, by stipulating that he might take a certain other time, and although he exceeded the last mentioned period, I think the report should not be set aside.

The statute gives the parties the right to require that the referee shall report within sixty days, and it declares the consequences of his omission to do so. But when once the parties have waived the right to exact a report within the sixty days, by stipulating otherwise, there is nothing in the statute which declares that any consequence shall result from the referee exceeding the time they see fit to allot to him. The statute does not say that the parties may, by stipulation, extend the time, and that the report shall be made within the extended period. The parties may oblige a referee to report within the sixty days, but if they surrender the power which the statute gives them, by waiving that period, they cannot, by any stipulation as to time, control his action.

p. 56

If, having been released from the limitation of sixty days. prescribed by the statute,- by the act of the attorney, the referee unreasonably delays to report, application must now, as before the Code, be made to the court to compel him to proceed to decide the case. For these reasons, I think the motion should be denied, but without costs.

From this decision the defendant now appealed. ■

F. R. Coudert, for appellant.

Geo. Carpenter, for respondent.

In addition to what was said by Judge Cabdozo', at Special Term, when the order was made to which this' appeal relates,, it may be said that if the referee were not granted his “ own time ” t© make and deliver his report, the defendant took no step indicating an intention to disaffirm the right of the referee to make and deliver his report, after the expiration of the period to which the- defendant admits the time to have been extended. _ The refusal to enlarge the time on application is not such an affirmative act. The party intending to render the reference useless must do some act thereto on the cause as already suggested. (Mantles v. Wyle, 26 How Pr. Rep., 409 .) It sufficiently appears from the conduct of the defendant’s attorney in asking an adjournment of the taxation of costs, that no act disclaiming the reference was done or intended, and it would be unjust to allow the objection to prevail against the vitality of the report. The right to make the objection was, under the circumstances, waived; as it might be (Mantles v. Wyle, supra.; Leitch v. Brotherson, 25 How. Pr. Rep., 407 ), and the order made at Special Term should be affirmed with ten dollars costs.