In re the Accounting of Vilmar — 10 Daly (N.Y.) 15

Majority

p. 15

In the Matter of the Accounting of Frederick Vilmar, Assignee for the Benefit of Creditors.

[Special Term.]

(Decided December 5th, 1878.)

Headnote

Section 1016 of the Code of Civil Procedure applies to references in proceedings under assignments for benefit of creditors, and a referee in such proceedings must be sworn unless the oath is waived.

Application to confirm, the report of a referee upon the accounting of an assignee under a general assignment for the benefit of creditors.

Section 1016 of the Code of Civil Procedure pro vides that the referee must before proceeding to hear the testimony be sworn faithfully and fairly to try the issues, or to determine the question referred to him, as the case requires, and to make a just and true report according to the best of his understanding. “ But where all the parties whose interests will be affected by the result are of age and appear in person or by attorney, they may expressly waive the referee’s oath. The waiver may be made by written stipulation or orally. If it is orally it must be entered in the referee’s minutes.”

I cannot find any such entry in the minutes of the referee herein, nor can I find any allusion to such a waiver having-been made in his report, and any further proceedings under the order would be therefore irregular (Malcolm v. Foster, 5 N. Y. W. Dig. 310; Exchange Fire Ins. Co. v. Irving, Id. 587).

Under these decisions I must send the report back.

Report referred back.