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Sproull v. Star Co.

56 N.Y.S. 1001 Court N.Y. Sup. Ct. English

Delivered by GIEGERICH, J.

Contents

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p. 1001
SPROULL v. STAR CO. (two cases).
(Supreme Court, Special Term, New York County.
March, 1899.)

Headnote

Motions to Confirm Report of Referee—Notice.
An order of confirmation of the report of a referee appointed, under Code Civ. Proc. § 1015, to advise the court as to a point, will be vacated, where granted without notice, since any objection to the report would have to be considered on the motion for confirmation.
Actions by Angelline M. Sproull against the Star Company and by James H. Sproull against the Star Company. On motion to vacate an order requiring plaintiffs to give security for costs, and an order granted ex parte confirming the report of the referee appointed for the advisement of the court. Granted as to the latter order.
Isaac N. Miller (B. Vanderhoven, of counsel), for the motion.
Einstein & Townsend, opposed.

Upon the plaintiff’s motion to vacate an ex parte order for security for costs, on the ground, among others, that the allegation of nonresidence was untrue, the question of residence was referred to a referee, to report for the advisement of the court. The report of the referee, favorable to the defendant, was filed, and notice of filing given, but the latter then procured its confirmation ex parte. This motion is to vacate the original order for security and the order of confirmation. The reference was directed under section 1015 of the Code of Civil Procedure for the information of the court upon a point arising upon such motion. Therefore any question arising upon the report was to be determined upon motion for confirmation, and no exceptions thereto were required to be filed. Martin v. Hodges, 45 Hun, 38 ; Ward v. Ward (Super. N. Y.) 21 N. Y. Supp. 795 . Hence the order of confirmation

p. 1002
without notice was irregular and must be vacated. Until proper disposition is made of the question thus referred, the original motion to vacate the order for security must be regarded as still pending, and I cannot properly inquire into the merits of that order. Motion to vacate order of confirmation granted, with $10 costs to the plaintiff to abide the event.