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Morrison v. Metropolitan Elevated Railway Co.

26 N.Y.S. 858 Court N.Y. Gen. Term Decision date 1893-12-15 Docket Nos. 2, 3, and 4 English

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p. 858
MORRISON v. METROPOLITAN EL. RY. CO. et al. MOORE et al. v. SAME.
(Nos. 2, 3, and 4.)
(Supreme Court, General Term, First Department.
December 15, 1893.)

Headnote

Reference—Oral Agreement.
Code Civil Proc. § 1011, provides for reference on the consent of the-parties, “manifested by a written stipulation,” signed by their attorneys. Rule 11 of general rules of practice provides that no oral agree
p. 859
ment between attorneys for the parties shall be binding. Seld, that an oral agreement to refer a cause is not binding.
Appeal from special term, ¡New York county.
Three actions by Edward A. Morrison against the Metropolitan Elevated Railway Company and another, (Nos. 2, 3, and 4,) and one action by George G. Moore and others against the same defendants.
From orders denying motions for references, plaintiffs appeal.
Reversed.
Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.
S. W. Dexter, for appellants.
A. O. Townsend, for respondents.

Section 1011 of the Code requires a reference to be ordered “upon the consent of the parties, manifested by a written stipulation, signed by their attorneys, and filed with the clerk;” and rule 11 of the general rules of practice provides that no oral agreement entered into between the attorneys or counsel for the parties shall be binding. It is conceded that no written stipulation signed by the attorneys has been filed here, nor do we find any agreement between the parties which is evidenced by a writing sufficient to bind them. All that appears is that negotiations were pending looking towards a reference of these cases; and before the referee was selected, or the particular cases in which a reference was to be had was agreed upon, the plaintiffs terminated the negotiations by withdrawing their consent. Under these circumstances, whatever criticism might be indulged in as to their good faith in withdrawing it after a verbal understanding had been reached, it was the exercise of a legal right which should not, against their consent, be interfered with. Our conclusion, therefore, is that the order must be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.