Patterson v. Knapp — 32 N.Y.S. 32

Majority

p. 32

(83 Hun, 492.)

PATTERSON v. KNAPP.

(Supreme Court, General Term, First Department.'

January 18, 1895.)

Headnote

Reference—Right to Terminate—Extending Time for Report.

The right to terminate a reference given by Code Civ. Proc. § 1019, in case the referee does not file his report within 60 days after the case is submitted, is not lost by agreement to extend the time for a definite period beyond the 60 days, where the referee does not file his report within the time stipulated.

Appeal from special term, New York county.

Action by William M. Patterson against Samuel T. Knapp. From an order setting aside the report of the referee, and vacating a judgment entered thereon, plaintiff appeals. Affirmed.

On the 4th of January, 1890, by an order duly made and entered, the issues in this action were referred to a referee to hear and determine. January 30, 1892, the trial was begun, and was continued from time to time until October 12, 1893, when the case was finally submitted to the referee for decision. On November 15, 1893, the attorneys for the parties, by a written stipulation, extended the time -in which the decision might be made for 60 days from December 1, 1893; and thereafter, by a like stipulation, the referee’s time was extended for 30 days from January 30, 1894; and on March 28, 1894, by a like stipulation, his time was again extended for 30 days from that date, which extended time expired April 27, 1894, since when no extension of time, oral or written, has been given. On the 18th of September, 1894, defendant’s attorneys served a written notice on the plaintiff’s attorney and on the referee, terminating the reference, pursuant to section 1019 of the Code of Civil Procedure. On October 8, 1894, the referee made his report, which was served, on the defendant’s attorney on the next day; and November 16,1894, judgment thereon was entered in favor of the plaintiff for $5,354.66 damages and costs.

Argued before VAN BRUNT, P. J., and O’BRIEN and FOLLETT, JJ.

E. H. Benn, for appellant.

N. B. Sanborn, for respondent.

Section 1019 of the Code of Civil Procedure provides:

“Upon the trial by a referee of an issue of fact or an issue of law, or where a reference is made as prescribed in section one thousand and fifteen of this act, the referee’s written report must be either filed with the clerk, or delivered to the attorney for one of the parties, within sixty days from the time when the cause or matter is finally submitted; otherwise, either party may, before it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the reference. In such a case the action must thenceforth proceed as if the reference had not been directed; and the referee is not entitled to any fees.”

It is urged in behalf of the appellant that the time given the referee, by statute, in which to make his report, having been extended, the parties lost their right to terminate the reference by notice; and Thiesselin v. Rossett, 3 Abb. Pr. (N. S.) 54, is cited in support of the proposition. It was so held at special term, but the general term, in considering the case,' sought other grounds for its affirmance of the order; and, in so far as the case holds that an extension of time to a referee suspends forever the operation of the section, it is over

p. 33

ruled. The object of the section was to facilitate the early decision of references, and to put it within the power of litigants to compel referees promptly to decide cases submitted to them; and an extension of the refereed time for a definite period does not operate to extend the time indefinitely, or put it beyond the power of either party to terminate the reference in case the referee fails to decide within the time stipulated. The rule contended for would be wholly inconsistent with the terms of the written agreement entered into between the attorneys, and violative of the purposes of the section.

The attorney for the plaintiff and the referee assert that, when the case was submitted, it was agreed between the attorneys that the referee might have all the time he desired in which to decide the case. No memorandum of any such agreement was entered in the minutes of the referee, and the attorney for the defendant, and his clerks, deny that such an agreement was made. The object of rale 11 of the supreme court is to relieve courts from deciding the disputes arising between attorneys as to whether or not a particular agreement was entered into in respect to the conduct of the case, and we shall not undertake to decide in this case whether or not an oral agreement was entered into between the attorneys. The order is affirmed, with $10 costs and disbursements.