Gill v. Clark — 65 N.Y.S. 406

Majority

p. 406

(31 Misc. Rep. 337.)

GILL v. CLARK.

(Supreme Court, Special Term, Onondaga County.

April, 1900.)

Headnote

1. Reference—Report—Delay—Election to Terminate—Waiver—Reasonable Notice.

Where a referee is given such time as he desires or may find necessary to report, the right of either party, under Code Civ. Proc. § 1019, on failure of the referee to make report within 60 days, to elect to end the reference by service of notice upon the opposite party, is waived, and the reference cannot be .ended without giving reasonable notice.

3. Same—Letter Construed as Extension of Time.

Where a referee is given such- time as he desires to file a report, and neglects for five months to make the .same, a joint note from the parties at the end of such period, to the effect that they expect a “decision in "the near future,” operates as a limited extension of time to the referee. ■

3. Same—Termination of Reference.

Where a referee is requested, by the joint note of the parties, five months after the submission of a cause, for a “decision in the near future,” and no report is filed at the end of twenty-eight days thereafter, -pla-intifE is entitled to terminate the reference on notice.

Action by Robert Gill against William Olark. Judgment was entered in favor of defendant on the report of a referee, and plaintiff moves to set aside and vacate the judgment and report.

Motion sustained.

Rogers & Atwell, for the motion.

A. E. Kilby, opposed.

This action was tried before a referee, and was finally submitted to him for his decision on August 18, 1899. He made no report, and on January 18, 1900, the counsel for the respective parties joined in a letter to him, in which they say that they had long ago submitted the case of Gill vs. Clark; and they thought they would drop him a joint note to refresh his recollection “and procure a decision in the near future.” No answer was received, and on February 17, 1900, the plaintiff’s attorneys served upon defendant’s attorney a notice ending the reference, in pursuance to section 1019 of the Code of Civil Procedure. The latter replied that such practice was irregular, and that, in view of the joint note of January 18th, a definite time should be given the referee within which to make and file his report. On March 1st the plaintiff’s attorneys notified the referee that the reference had been terminated. On March 3d the referee made and filed a report in favor of the defendant. The question at issue is therefore whether the reference was ended by the notice of February 17th. ■

It is unquestionably true that section 1019 was enacted for the benefit of parties to litigation, and may be waived by them. This may be done, not only by formal stipulation, but by such conduct as in fairness estops the litigant from taking advantage of the strict letter of the law. Dwyer v. Hoffman, 39 Hun, 360 . Such waiver may be for an indefinite time, as in Ballou v. Parsons, 67 Barb. 19 . Here, as appears from the papers, the referee was allowed such time as he desired or found necessary. In such a case the reference may not be

p. 407

ended without giving reasonable notice. Or the waiver may be for a fixed period. When this has expired, the notice may be served at any time. Patterson v. Knapp, 83 Hun, 492 , 32 2T. Y. Supp. 32. In the case at bar it must first be determined whether the letter of January 18th was equivalent to an agreement to extend the time of the referee. If so, was the extension an indefinite one? H not, had the time given expired on February 17th?

I think the letter did operate as an extension of time. In this matter the interests of the referee are to be consulted as well as those of the parties. His compensation depends upon the filing of his report before the reference is ended. When the 60 days have expired, in the absence of any request, he might well hesitate, therefore, to continue his labor upon a case before Mm. But, upon the receipt of such a letter as the one here considered, he might fairly believe that his delay was forgiven, and that he might proceed with safety.

Yet the extension was not an indefinite one. The suggestion was that a decision should be procured “in the near future.” ¡Neither he nor the parties could have understood that the intention was to give an unlimited time. The language was not precise. It did not limit the referee to any fixed number of days, but it did limit him to “the near future.” Consequently, when this time had expired, either party might terminate the reference. It is, of course, difficult to say exactly what was meant, and what the referee had the right to understand was meant, by these words. Still I tMnk that 28 days was a delay beyond that justified by the joint note, and that on February 17th the extension given had expired. If this be so, the reference was properly ended, and the subsequent report of the referee, and the judgment entered thereon, were irregular. The motion is therefore granted, with $10 costs to plaintiff to abide the event.

Motion granted, with $10 costs to abide event.

Cases cited

Ballou v. Parsons 67 Barb. 19 N.Y. Sup. Ct. 1873-04-15 p. 406