Ballou v. Parsons

Headnote

When an oral agreement is made in open court upon trial before a referee, upon final submission, extending indefinitely the time within which the report may be made and delivered, the reference cannot be terminated in the manner provided by section 378 of the Code.

It seems that, in such case, the proper practice, in order to terminate the extension, is to serve notice upon the opposite party and the referee; that unless the report is made within a specified reasonable time, the reference will be deemed ended.

Gh'egory v. Oryden ( 10 Abb., 389 ) distinguished.

Upon taxation of costs, in an action tried by a referee, the clerk has nothing to do with the question whether the referee’s report has been regu

larly obtained. His decision awarding judgment stands before the clerk as the mandate of the court, and, until vacated or set aside, on proper application to the court, its direction must be obeyed.

Two motions were heard together in this ease; one on the part of plaintiffs to compel the clerk to tax his costs, the other on the part of the defendants to set aside a report of a referee herein.

The action was tried by a referee. Upon the final submission of the cause an oral agreement was made by the parties in open court, extending indefinitely the time within which the referee should make and deliver his report. The cause was submitted April 9th, 1869. On the 28th October, 1872, defendants’ attorneys served notice of their election to terminate the reference under section 273 of the Code. On -the 19th November, 1872, the referee made and delivered his report awarding judgment in favor of plaintiffs. Plaintiffs’ attorney noticed his costs for taxation before the clerk of "Washington county. Taxation was opposed by defendants on the ground that the reference was terminated by his notice and the report was void. The clerk refused to tax the costs. Held, as above. The case of Gregory v. Gryden ( 10 Abb., 289 ) was distinguished from this by Bocees, J., whose opinion was adopted, in this, that there was no extension of time or waiver of strict compliance with section 273 in that case. Plaintiffs’ motion was granted and defendants’ denied.