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Doremus v. Doremus

27 N.Y.S. 1039 Court N.Y. Gen. Term Decision date 1894-02-16 English

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p. 1039
DOREMUS v. DOREMUS et al.
(Supreme Court, General Term, First Department.
February 16, 1894.)

Headnote

Reverence—To Hear and Report—Appeal.
Where a cause is referred, not to hear and determine, but to take the evidence and report it to the court with the opinion of the referee thereon, exceptions to the report of the referee are unavailing, but the decision of the court in passing on the report of the referee must be excepted to.
Appeal from special term, Hew York county.
Action by Charles C. Doremus against Arieanna M. Doremus, individually and as executrix of the will of P. C. Doremus, deceased,
p. 1040
and others, for partition. An order was entered that the cause be referred to William' H. Willis, Esq., to take testimony, and report to the court with his opinion as .to the rights of the several persons interested in having liens upon or claiming any part of the proceeds of the sale of the premises which had been deposited with the city chamber. From an order confirming the report of the referee’s award -to Messrs. Bliss & Schley of $500 for their services as the attorneys of plaintiff they appeal. Affirmed.
For former reports, see 20 N. Y. Supp. 906 , and 21 N. Y. Supp. 13 .
Argued before VAN BRUNT, P. J., and O’BRIEN and F.OLLETT, JJ.
Bliss & Schley, in pro. per.
Theodore H. Silkman, for respondents.

The reference in this case was not to hear and determine, but to take the evidence, and report it to the court, with the opinion of the referee thereon. Exceptions to such a report are unavailing, as exceptions can be taken only to the determination of some court or officer having power to decide the question the decision of which is challenged. Under this reference it was the duty of the court to determine the facts and the law, and, if the. determination was unsatisfactory to either party, exceptions should have been filed to its decision. None having been filed and served, the record presents no' question for review. It will be seen from this conclusion that we do not agree with the respondent in his contention that it was necessary to file exceptions to the report of the referee, and that the failure to so file them would, after eight, days, result in the confirmation of the report. As correctly stated in Attorney General v. Continental Life Ins. Co., 64 How. Pr. 93 :

“The thirtieth rule of- the court, as to the necessity of filing exceptions to a referee’s report, has no application to a reference of this nature and character. It is only to a reference which empowers a referee to decide questions between parties that the rule is applicable, and cannot foreclose the court from passing upon matters which such court only has power to determine.”

The motion to confirm the report could be resisted at special term upon any grounds appearing in the record, without exceptions having been filed to the report; but after the questions of fact and of law had been finally determined by the special term exceptions should have been filed, in order to successfully challenge the decision. Our conclusion is that the order should be affirmed, with $10 costs and disbursements.

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