Kinsila v. Shubert — 160 A.D. 8

Majority

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Edward B. Kinsila, Appellant, v. Lee Shubert and Others, Respondents.

Second Department,

December 31, 1913.

Headnote

Reference — right to submit requests to find after entry of judgment.

After a referee to hear and determine has made, signed and delivered his report and judgment has been entered thereon, the defendants are not entitled to submit requests to find, where it does not appear that their rights may not be fully protected by exceptions.

Appeal by the plaintiff, Edward B. Kinsila, from an order of the Supreme Court, made at the Orange Special Term and entered in the office of the clerk of the county of Orange on the 8th day of November, 1913.

Elbert N. Oakes [Thomas Watts and John Bright with him on the brief], for the appellant.

Henry Bacon [ William Klein with him on the brief], for the respondents.

The plaintiff appeals from an order of the Special Term that permits the defendants to submit requests to find after the referee to hear and to determine had made, signed and delivered his report and judgment had been entered thereon. The sole ground of the motion was the misapprehension of the defendants’ attorneys in acting upon the expectation and understanding that the referee would notify the parties of his decision, and of the nature thereof, before deliverance of the report, and that such, they were informed and believed, was the uniform practice. It does not appear that there was any such understanding between the parties or with the referee.

While we do not decide that the Special Term is powerless to make such an order, we think that it should not have been made in this case. The attorney but deposes that “ the rights of deponent’s clients will be seriously interfered with if he shall not be permitted to submit to said referee such requests and obtain such ruling.” It does not appear, however, but that the rights of his clients may be fully protected by excep

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tions. True, we are not informed that exceptions have been filed, but, on the other hand, it does not appear that permission has been sought to file them.

We think that the order must be reversed, with ten dollars costs and disbursements, and the motion must be denied, with ten dollars costs.

Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.