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Combs v. Wyckoff

1 Cai. 147 Court N.Y. Sup. Ct. English

Delivered by Livingston, J.

Contents

Majority

p. 200
Combs against Wyckoff.

Headnote

If a party to a suit referred, cannot produce Ms witnesses by the time of hearing, a judge at chambers in vacation, or the court, if sitting, will stay proceedings. Defendant’s attorney having nominated referees, and the party not having objected, he cannot, on that ground, move to set aside a report. The court will not notice any agreement in a cause between the attorneys, unless reduced to writing.
This was an action for damages in not delivering a boat alleged to have been purchased by the plaintiff.
Woods
moved to set aside the report of the referees on an affidavit by the attorney in the cause, stating that the witnesses of the defendant were seafaring men; that there had been an express agreement between the deponent and the plaintiff’s attorney, that the referees should not make up their report until the testimony on the part of the defendant could be obtained; yet, notwithstanding this agreement, the referees had reported without waiting for the evidence on which the defendant relied; that a sum had been allowed the plaintiff for a loss, said to have been sustained by not being enabled to carry a quantity of wood to New-York, though it was proved, and even admitted, that a part of the wood was previously sold by the plaintiff; and the residue might have been conveyed to New-York had he thought fit; that the referees were nominated by the deponent without the knowledge of the defendant, Between whom and one of them a quarrel had taken place, which was not made up; that by the next circuit the defendant hoped to be able to procure testimony which would at least diminish the damages against him.
p. 201
Skinner, contra,
read Ms own. deposition setting forth that he did not recollect the agreement above mentioned, and that_ at least it was not in -writing; that the referees met several times, and were as often adjourned at the request of the defendant’s attorney under the pretence of not being *able to procure the attendance [*148] of his witnesses; that at the last meeting the defendant’s attorney declined summing up, and so far from any enmity existing betwen the defendant and one of his referees, the very party named as being inimical was his special bail.

delivered the opinion of the court. The defendant moves to set aside the report of referees, alleging,

1. That it was agreed by the plaintiff’s attorney, that no report should be made until the defendant’s witnesses could be procured, which was afterwards disregarded.

This agreement not being in writing, and being denied by the plaintiff’s attorney, must be laid out of sight. The court cannot too frequently inculcate the necessity of reducing to writing all agreements between gentlemen of the bar.[5] Many mistakes, much misunderstanding and controversy will by this measure be avoided. In the present case it appears that two months elapsed before the report was made, which was allowing sufficient time for the defendant to produce his witnesses. If they were abroad, he might have applied to the court (for a term intervened between the appointment and report of the referees) for an order on them not to proceed for a reasonable time,[4] which

p. 202
would have been granted, or a judge at his chambers would have ordered the proceedings to stay until application should be made to the court,[5]

2. Another objection is, that a sum was allowed, which was not proved to be due. Of this allegation there is no satisfactory proof, and therefore we can take no notice of it.

3. A third objection is, an emnity between the defendant and one of the referees.

This reference, it is observed, was on a nomination by the defendant’s attorney, and although he might have been ignorant of the quarrel spoken of, the defendant by his acquiescence in the appointment, and submitting the cause to his decision, cannot now avail himself of this challenge. He should have applied to the court to remove him and appoint another.[4] It is somewhat remarkable, however, that the referee who is repugnant or hostile to the defendant, should be his special bail in this very cause. [*149] *4. The defendant states that “ he can now introduce evidence to diminish at least the damages reported.” This is very loose, to say the least. Why was not this testimony obtained before ? and to what extent will the damages be reduced, if it be offered now ? Will it justify a diminution of only one dollar, or less? If so “rife minimis non curat lex," and if the discovery had been .made even prior to the report it would be no reason for

(b) (b) It has been since ruled that when parties elect to act for themselves in the nomination of referees, without the intervention of the court, a motion to set aside the report will not be heard, Miller & Underhill v. Vaughan, 1 Johns. Rep. 315 , though accompanied by an affidavit of merits. Stephenson v. Beech t, ibid. 492.

p. 203
disturbing it. Let the defendant take nothing by his motion, and pay the costs of this application.

Motion denied, with costs.[5]

(a) (a) A motion to set aside a report of referees ought to be made in the term next after the report, Comstock v. Rathbone, 1 Johns Rep. 138 , and when on the merits, is an enumerated motion. Clinton v. Elmendorf, 3 Johns. Rep. 143 . Note, the marginal statement of this ease in the report ia right, that in the index wrong." See the point as ruled above. Caines’ Prao. 494. Though it is not necessary that the report should have been filed, provided it has been delivered to the party who urges that as an objeetic a. Thompson v. Tompkins, 1 Johns. Cases. 238.

Footnotes

  1. (a) (a) S. P. Bain v. Green, 2 Caines’ Rep. 95 . Brandt v. Berrian, 3 Caines’ Rep. 131 . Parker v. Root, 7 Johns. Rep. 320 . The rule extends to parties in the suit; Shadwick v. Phillips, 3 Caines’ Rep. 129 , and though the agreement be admitted, the rule will be enforced, unless expressly waived. 2 Caines’ R. 95. 3 Caines’ R. 131. See also Griswold v. Lawrence, 1 J. R. 507.
  2. (b) (b) S. P. Sands ads. Bird and others, Col. Cases, 105. See as to adjournment before referees; Jacksons v. Ives, 22 Wend. 637 ; Ex parte Rutler, 3 Hill, 464 ; Graham v. Morton, 6 Wend. 552 ; Langley v. *202 Hickman, 1 Sand. 681; Cleveland v. Hunter, 1 Wen. 104; Sudam v. Swart. 20 J. R. 476.
  3. (a) (a) а) When a report was made without giving time to adduce testimony in proof of items agreed to be admitted, but at the meeting refused to be allowed, the court set aside the report, though the agreement was by paroL Forbes v. Tracy & Tracy, Caines' Prac. 495. S. C. by the name of Forbes v. Tracy and another, 2 Johns. Cases, 224.