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Genet v. President of Delaware & Hudson Canal Co.

37 N.Y.S. 610 Court N.Y. App. Div. Decision date 1896-02-07 English

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p. 610
GENET v. PRESIDENT, ETC., OF DELAWARE & H. C. CO.
(Supreme Court, Appellate Division, First Department.
February 7, 1896.)

Headnote

Reference—Withdrawing Submission.
A cause pending before a referee was submitted on March 19th. The documentary evidence was soon after withdrawn for use in the trial of another action between the same parties, and was not returned to the referee until October 17th. On July 2d, meanwhile, defendant moved before the referee to reopen the cause, and put in evidence the judgment rendered in such other action, which motion was pending and undetermined on December 3d following, when plaintiff served notice of her election to terminate the reference, on the ground that the referee’s report had not been filed or delivered within 60 days after final submission of the cause. Code Civ. Proc. § 1019. Held, that, at the time when plaintiff’s notice was served, the cause had not been finally submitted to the referee.
Appeal from special term, New York county.
Action by Augusta G. Genet against the president, manager, and oompany of the Delaware & Hudson Canal Company, for damages on contract. The cause was referred, and was submitted to the referee, March 19, 1895. Pending the trial before the referee, plaintiff began an action against the defendant herein, in the superior court, based on the same contract involved in this action, and raising an issue identical with that pending before the referee, on the trial of which second action documents and exhibits in evi
p. 611
dence before the referee were borrowed from him by both parties, and offered in evidence therein, and not finally returned to him. until October 17, 1895. That action resulted in a judgment, July 2, 1895, in favor of defendant, who thereupon moved the referee to reopen the case, and to put in evidence the judgment of the superior court, which motion has not yet been décided. December 8, 1895, plaintiff served notice on defendant’s attorney that she elected to end the reference. From an order appointing a new referee, on motion of plaintiff, supported and opposed by affidavits setting up, with other matters, the foregoing facts, defendant appeals. Reversed.
Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY, WILLIAMS, and INGRAHAM, JJ.
F. Walling, for appellant.
Geo. C. Genet, for respondent.

We are of opinion, upon the facts as they appear in the affidavits, that, at the time when the plaintiff gave her notice electing to terminate the reference, the cause was not finally submitted to the referee, within the meaning of section 1019 of the Code of Civil Procedure.[1]

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.

1 Code Civ. Free. § 1019, provides that the report of the referee must be filed with the clerk, or delivered to the attorney of one of the parties, within 60 days from the time of final submission, and otherwise either party may, by notice, elect to end the reference.