Foster v. Bryan — 26 How. Pr. 164

Majority

p. 164

SUPREME COURT.

Foster agt. Bryan.

Headnote

It is not a condition precedent to its validity* that the report of a referee be made within sixty days.

The referee forfeits his fees by his neglect to make the report within sixty days, but this is a penalty imposed only on him.

It is the right of either party to proceed as though no report had been made, if it is not made in sixty days. But where both parties wait till the report is made and delivered, without attempting to proceed in the action, the objection that the report was not made in sixty days is thereby waived.

New York Special Term,

December, 1863.

Motion by defendant to set aside report of referee and the judgment thereon, on the ground that the report was not made within sixty days after final submission of the cause to the referee.

F. Hart, for defendant.

Mr. Cummins, for plaintiff.

The referee failed to deliver his report, within sixty days from the time the action was finally submitted to him, but no step ivas taken by either party to proceed in the action, as though no reference had been ordered, until after the report was made and deliv

p. 165

ered. The defendant, against whom the" referee has reported, now insists that the report is void, and that the referee had lost all right to make any report in the action by his neglect to report within the time prescribed by section 313 of the Code.

The clause in question was added to this section in 1862. It is remedial in its character, and must be construed liberally for the benefit of the public. It is also directory. It contains no words negativing the validity of a report made after the expiration of sixty days. The referee forfeits his fees by his neglect, but this is a penalty imposed only on him.

It is the right of either party to proceed as though no reference had been ordered. But in this case neither party availed himself of the right. Both waited till the report had been delivered, without attempting to proceed in the action.

There is no limitation imposed upon the power of the referee to make a valid report, although more than sixty days have elapsed, unless one of the parties has taken some step manifesting an intention to proceed as though no reference had been ordered. (The People agt. Allen, 6 Wend. 487 ; Gale agt. Mead, 2 Denio, 160 , and other cases there cited; Thomas agt. Clapp, 20 Barb. R. 165.)

It is not a condition precedent to its validity that the report be made within sixty days. (The People agt. Holley, 20 Wend. 481 .)

The motion to set aside the report and the judgment is denied, but, as the question is novel, without costs.

The referee swears that the counsel for both parties consented that he might take his time to make his report. This answers, I think, the objection to the adjustment and allowance of the referee’s fees.