Majority
p. 497(83 Hun, 1.) CRUMBIE v. MANHATTAN RY. CO. (Supreme Court, General Term, First Department. December 14, 1894.) Argued before VAN BBUNT, P. J.,. and FOLLETT and PARKER, JJ.
Headnote
1. Reference to Take Testimony.A reference cannot be made to take testimony to be used on the trial of an equity case.
2. Trial—Reference to Take Testimony—Waiver of Objections.
Appearance before a referee appointed to take testimony is not a waiver of the objection that the reference was unauthorized.
Appeal from special term, New York county.
Action by Ann E. Crumbie against the Manhattan Bailway Company to enjoin the operation of defendant’s elevated railroad in the street in front of plaintiff’s premises, known as “Nos. 363-365^ Bowery.”* After plaintiff had introduced evidence in support of her case, the court, of its own motion, suspended the trial, and made an order of reference to William S. Andrews, Esq., “to take testimony as to the amount of damage, if any, suffered by the plaintiff by reason of the maintenance and operation by .the defendant of its elevated railroad in front of the plaintiff’s premises, and to report the same, with his opinion thereon, and report, with his opinion thereon, as to the value of the plaintiff’s property taken or appropriated by the defendant for the maintenance and operation of its railroad in front of said premises.” The order further provided that, on the filing of such report in the office of the clerk of the court, either party might apply to the court for the continuation and closing of the trial. The referee having duly filed his report with the clerk, and the cause having, again come on for trial at a special term, the court made “the following findings of fact and conclusions of law upon the testimony taken before me, and the further testimony taken before the said referee,, with his report thereon.” Judgment on such findings of fact and conclusions of law was entered in favor of plaintiff, and defendant appeals.
Beversed.
A. O. Townsend, for appellant.
H. G. Atwater, for respondent.
It now seems to be well settled that the court should not make such an order of reference as was made in this case. Upon the trial the defendant had the right to take the objection that the evidence sought to be introduced had not been taken according to law. Suppose a party participates in a de bene esse examination, unless the evidence is certified to the court according
p. 498
to law such evidence cannot be used upon a trial. The party does not waive these statutory requisites by appearance upon the taking of the testimony. So, in the case at bar, when it was sought to read upon the trial the evidence which had been taken in a manner not provided by law, the appellant had a right to object to its introduction, and the overruling of such objection was error. The judgment appealed from must be reversed, and a new trial ordered, with costs to the appellant to abide the event.