Newman v. Benedict — 125 N.Y.S. 1039

Majority

p. 1039

NEWMAN v. BENEDICT.

(Supreme Court, Appellate Term.

December 8, 1910.)

Headnote

Appeal and Ere or (§ 460^[1] )—Reference—Vacation of Order—Judgment.

Where the Appellate Term vacated an order of reference, and its order was affirmed by the Appellate Division, the proceedings had before the referee pending the appeal were unauthorized, and a judgment based thereon was void.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2217-2226; Dec. Dig. § 460.*]

p. 1040

Appeal from City Court of New York, Special Term'

Action by Julia £,. Newman against Julian Benedict. Judgment for plaintiff, and defendant appeals. Reversed.

See, also, 125 N. Y. Supp. 297 .

Argued before'GUY, PEATZEK, and GAVEGAN, JJ.

Robert L. Stanton, for appellant.

Alexander Thain and Otto G. Foelker, for respondent.

GUY, J.

This is an appeal by defendant from a judgment in favor of plaintiff for $1,472.53 entered upon an order affirming the report of a referee. The judgment was dated the 23d day of February, 1910. On the 22d day of December,. 1909, plaintiff’s attorney procured an order on defendant’s default at Special Term of the City Court of the city of New York referring the issues to a referee to hear and determine. The defendant moved to vacate said order of reference, which motion was denied, and an appeal taken from the order denying the motion. On March 15, 1910, the Appellate Term Of this court reversed said order and vacated the order of reference, and upon appeal taken to the Appellate Division said order was modified by providing “that either party shall have leave to apply to the Special Term of the City Court of the city of New York for the appointment of a new referee in this action,” and, as so modified, said order of the Appellate Term of this court was affirmed. Pending the determination of the appeal to the Appellate Term, and subsequently to the Appellate Division, plaintiff, over defendant’s objection, brought the issues on for trial before the referee. Defendant’s attorney appeared before the referee and asked that the hearing" be adjourned pending the final determination on appeal of the motion to vacate, but this motion was denied and the trial proceeded before the referee, resulting in a report in favor of plaintiff and the entry of judgment as aforesaid. The Appellate Term of this Court having vacated the order of reference on which the judgment’ appealed from is based, and its order having been affirmed by the Appellate Division, the proceedings had before the referee were unauthorized and the judgment based thereon is void.

The judgment appealed from is therefore reversed, with costs to appellant. All concur.