Betjemann v. Brooks — 4 N.Y.S. 813

Majority

p. 813

Betjemann v. Brooks et al.

(Supreme Court, General Term, First Department.

March 29, 1889.)

Headnote

Reference—When Proper.

After a judgment entered on the report of a referee is reversed, and the order of reference is set aside on appeal, and it appears from the record of the trial that the

p. 814

examination oí a long account will not be necessary, and that there is but one seriously litigated question of fact, the special term should not again direct a compulsory reference.

Appeal from special term, Hew York county.

Action by John Betjemann against Mary E. Brooks for goods sold and delivered. There was a judgment for plaintiff on a report of a referee, which was reversed. 39 Hun, 649 . The defendant having died, the action was revived against her executors, Emerson Brooks and Herman E. Cabot, who, when the action was remanded, moved for another reference, which being refused they appeal.

Argued before Van Brunt, P. J., and Bartlett, J.

Kelly & MaoBae, for appellants. Edward P. Wilder, for respondent.

The court below was quite right in refusing to refer this case a second time. The trial already had shows that the examination of a long account will not be required. The action is brought to recover the value of groceries which the plaintiff claims to have delivered to the defendants’ testatrix at Ho. 86 Irving Place, Hew York city. The referee before whom the case was tried states in his opinion that there was no dispute as to the value of the goods, or as to their delivery at the house mentioned; and the only question seriously litigated appears to have been whether the persons who received the groceries there were the agents or servants of the former defendant, Mary E. Brooks. There is no good reason to suppose that the new trial will differ from the first one in this respect, and hence a compulsory reference should not be ordered. The appellants insist that the reversal of the judgment entered upon the referee’s report did not operate to vacate the order of reference, but left that order in all" respects in force except as to the person who should try the case as referee; and on this point they cite Catlin v. Adirondack Co., 19 Hun, 389 , 81 N. Y. 380 . In that case it was held that upon the reversal of a judgment entered on a referee’s report the order of reference "was not to be deemed vacated unless an express direction to that effect was given by the court at general term, or unless the court at special term vacated the order of reference upon motion. In the present case, however, the general term order of reversal does expressly direct that the order of reference shall be vacated ; so there is no room for the contention that the case still stands referred, notwithstanding the reversal of the judgment. The order of the special term should be affirmed, with costs and disbursements.

Van Brunt, P. J., concurs.