Shrady v. Van Kirk

The principal question for our consideration is as to the right and power of the special term, after a reference to hear and determine, to insert the provision permitting the sales upon bond and mortgage. Incidentally the question of practice arises,—as to whether such a provision, if improperly inserted, can be stricken out on motion, as an irregularity, or whether the plaintiff’s remedy is not by appeal from the judgment. While the case was pending, and the referee had jurisdiction over, the action, he had the right, in connection with the making of his report and decision, to settle the form of the judgment; but, after the report had been taken up and filed, the referee was functus officio, and had no further jurisdiction for the purpose of deciding any issue involved in the action. If we are

In Vagen v. Birngruber, 9 N. Y. St. Rep. 728 , it was said:

“The action, being for equitable relief, the final judgment should have been a decree of the court, settled by the court, and entered upon its direction; the referee who tried the case not having reported the form of decree to be entered. Section 1228 of the Code in no way conflicts with this practice.”

Here, however, the sales were to be made by testamentary trustees, and therefore necessarily under the provisions of the will; and the will directed a sale of the realty, but was silent as to whether it was to be sold entirely for cash, or on credit, or otherwise than for cash. This being the situation, we think the general rule is applicable that the failure to authorize a sale on bond and mortgage raises the presumption of an intention that the property should be sold for cash. Where a testamentary disposition has been made, directing the sale of realty, the invariable rule is that the sale shall be absolutely for cash, unless otherwise distinctly specified, and not for bon'd and mortgage, nor on any credit plan.

Whether this question was considered by the referee is not made to appear, further than that his report does not, in terms, do more than direct a sale of the realty, thus following practically the language of the will; and seemingly, therefore, the presumption would follow that, in his view, the sale should be solely for cash. When the motion was made to the court, therefore, we think it was without power or right to insert the provision essentially different from this, and allowing the sale upon terms permitting the purchaser to give a bond and mortgage for 60 per cent, of the purchase price. As said in Paget v. Melcher, 26 App. Div. 15 , 49 N. Y. Supp. 922 :

“The action was referred to a referee to hear and determine, and his report was made, directing the judgment to be entered. In that case the report stands as the decision of the court (Code Civ. Proc. § 1228), and by the provisions of that section the clerk was required to enter judgment upon it when its form has been settled by the referee. Although it has been deemed necessary, in this department, that there should be a direction of the court for the entry of the judgment, yet, when entered, it must be the one directed in the report of the referee. The court at special term, when a motion is made for leave to enter the judgment, has no power or authority to give directions which shall require the entry of a judgment substantially different from that prescribed in the report of the referee. Kennedy v. McKone, 10 App. Div. 97 , 41 N. Y. Supp. 577 . The judgment to be entered upon this report is to be reviewed in the same way as one entered upon a decision of the court, for the report tías the same effect, precisely, as such decision. The manner in which it is to be reviewed is prescribed in section 1022 of the Code, and no authority is given to the court at special term to change or alter the directions given by the referee as to the entry of judgment. The application for judgment upon the report which is made to the court at special term is not for the purpose of a review of the correctness of the findings of the referee, but simply to furnish an assurance of regularity in the manner of en

tering the judgment, and to enable all parties to know that the judgment, as entered, conforms to the one- directed in the report. There was therefore no authority in the special term to modify the conclusions of law found by the referee so as to enter a different judgment than that directed in the report.”

We have already adverted to the fact that the referee, after he ceased to have control over the action, was of opinion, as appears from his approval of such provision in the form of judgment, that it should be inserted; but this does not aid us, because, as stated, when he expressed such approval he was functus officio, and therefore it is as though he had not attempted to exercise that power. It was the duty of the referee to decide every material question involved in the litigation, and he had no power to relegate or return any such question for decision to the court. The question as to whether, under the terms of the will, the property could be sold otherwise than for cash, involving, as it did, a construction of that instrument, was a material one; and it needs no argument to support the view that the referee could not refuse toi pass upon such a question, and then refer it back to the court. There is certainly ho provision of law which gives a referee the right to confer jurisdiction on the court to dispose of some untried question which was before him on the reference to hear and determine. It was his duty to try and dispose, as said, of all the material questions; and, upon the return of his report to the court, all that remained was for the court to settle the form of the judgment accordingly. ■ This, however, gave no power to the court to add to or take away from the judgment in a material respect, and the attempt to do so is a clear irregularity.

We have thus reached the conclusion that the court exceeded its power in inserting any such provision in the judgment. The question remains, however, whether the practice pursued by the plaintiff was right, in moving to strike out the provision as irregular, or whether his sole remedy was by appeal from the judgment. Under the authorities to which we have adverted, we think the practice followed was right. As said in Bank v. Blye, 119 N. Y. 414 , 23 N. E. 805 :

“We think the decisions are uniformly to the effect that when an error has been made in respect to the form of the judgment, by which its scope or amount has been enlarged or increased beyond that plainly authorized by a verdict, referee’s report, or decision of a court, a question is not presented for the consideration of the court on appeal, but the error must be corrected, if at all, by motion in the court of original jurisdiction.”

It follows, accordingly, that the order appealed from should, in this respect, be reversed.

In regard to the three other alleged irregularities, we need add nothing to what was said by the learned judge in disposing of the motion at special term.

The order appealed from should accordingly be reversed, and the motion granted to the extent indicated, and in all other respects affirmed, without costs to either party on this appeal. All concur, except VAN BRUNT, P. J., who dissents.