Majority
p. 242New York Marine Court. General Te rm March, 1880. CHARLES G. WEBBER, Plaintiff and Appellant, against CHARLES H. TRUAX, Assignee, &c., Defendant and Respondent.
Headnote
A referee cannot be appointed by the marine court to take an examination in an adjoining county.The defendant obtained an order requiring the plaintiff, who resides at Flushing, New York, to appear at that place, before a referee named in the order, and submit to an examination as a witness before trial. The plaintiff moved to set aside the order as unauthorized, and from the order of the special term judge, •denying said application, the plaintiff appeals.
p. 243
P. & D. Mitchell, for plaintiff and appellant.
Qhauncey S. Truax, for defendant and respondent.
As the territorial jurisdiction of the marine court is limited to the county of New York, its judges cannot perform judicial functions in other counties. As the court itself does not possess such power, it cannot confer it by any form of delegation upon a referee. The order directing the referee to take the plaintiff’s examination at Flushing, Queens county, was therefore a, nullity (Bonner n. Phail, 31 Barb. 107 ). The special term judge ought, therefore, to have granted the plaintiff’s motion, and his refusal to do so is error, for which the order appealed from must be reversed and the original order for examination vacated, with costs.
GIoepp and Hawes, JJ., concur.