Rovnianek v. Kossalko

. Plaintiffs, by virtue of levy under execution upon their judgment against the defendant, claimed certain moneys deposited by the defendant with the county clerk of Queens county. They moved the special term for an order that the county clerk pay such moneys in part satisfaction. The defendant did not appear on the motion, but, by agreement with the defendant, Mrs. Constant appeared, and laid claim to the moneys. No question was then raised, nor is any question raised before us, as to the right of the court to determine the question of the ownership of this money upon the motion. The special term ordered that “all matters arising upon this motion and the claim of Katie Constant be, and the same hereby are, referred” to a referee, with directions “to hear the proofs submitted by each of said parties in reference to their respective claims, and to determine the same with all convenient speed to this court.” The referee took testimony, and thereafter reported “to the supreme court of the state of New York,” stating that he did so as the referee “appointed to hear and to determine in the above-entitled action,” finding divers matters of fact and of law, and directing judgment, with costs “of this special proceeding,” to the claimant, Constant. Mrs. Constant’s attorney gave notice on October 30, 1900, to the plaintiffs’ attorney, of the filing of the report and of the testimony on that day. The plaintiffs, under date of November 8, 1900, excepted to the rulings of the

It is not necessary to review the learned and elaborate discussion of the respective counsel as to the relative rights of the parties, the practice pursued, or the rights of appeal, for the reason that I think that this appeal should be disposed of upon grounds not discussed by counsel; for I think that the intention of the learned special term was not to enter an order of reference to hear and to determine issues. The case had gone to judgment. The sole question before the court was the motion to compel the county clerk to satisfy the plaintiffs’ judgment out of money levied upon by execution, but which moneys were claimed by a third party claiming under the defendant. I judge that the terms of the order were an inadvertence, and that instead of stating that “the matters arising upon this motion and the claim of Katie Constant be, and the same are hereby, referred, with directions to hear proofs submitted by each of the parties in reference to their respective claims, and to determine the same with, all convenient speed to this court,” the order was intended to read, "with directions to hear the proofs submitted by each of said parties in reference to their respective claims, and to report the same [or to report the same with his opinion], with all convenient speed, to this court.” In other words, it was a reference of aid to the court in determining the motion. As was said of a similar proceeding: “It was not the reference of an action, but was a reference under a special motion;” and here it was to relieve the court from taking the testi mony, and (perhaps) to obtain the opinion of the referee. Patten v. Bullard, 3 N. Y. St. Rep. 735 , affirmed in 118 N. Y. 669 , 22 N. E. 1136 . Such a report was not at all conclusive upon the court; it might adopt it or disregard it. Martin v. Hodges, 45 Hun, 38 , 40; Patten v. Bullard, supra. So far as the record shows the motion has never been decided. Buie 30 provides that, if no exceptions are filed thereto, confirmation follows, and the order of confirmation made herein was but the formal execution of the rule. But for the reasons stated in Martin v. Hodges, supra, by Haight, J., such confirmation of the report did not determine the motion. There is nothing, then, before us