Crook v. Crook — 12 N.Y. St. Rep. 663

Majority

p. 663

Marcella F. Crook, Administratrix of John Stacon, Administrator, etc., Resp’t, v. Samuel H. Crook et al., App’lts.

(New York Court of Common Pleas, General Term,

Filed December 5, 1887.)

Headnote

1. Practice—Judgment—Entry of on report of Referee—Code Ciy. Pro. § 1328.

Under Code Civ. Pro. § 1338, where a case has been tried by a referee, under an order directing him to hear and determine, except where it is otherwise expressly prescribed by law, judgment can be regularly entered upon the report of the referee, simply upon filing the same with the clerk of the court, and without service of a copy thereof upon the attorney for the opposite party. Under the old Code, §§ 367-273, the practice was different.

3. Same—Service of copy of papers—Who is a person in charge of office, Code Civ. Pro., § 797.

A copy of a judgment herein with notice of the entry thereof indorsed on it, was served on the defendant’s attorney by leaving the same with a person who occupied an office which had a common entrance with said attorney’s, said attorney’s office being open at the time, but he being absent. 3eld, that the person who received it was in charge of said office within Code Civil Pro., § 797, and that the service was sufficient to limit defendant’s time to appear.

This is an action on the equity side of the court in which the plaintiffs prayed for a judgment declaring the defendant Samuel H. Crook to be a trustee of a certain lease' for the benefit of the plaintiffs, as administrators of Samuel H. Crook, Jr., deceased, and requiring an assignment of ■such lease by said defendant to said plaintiffs.

An order of reference was entered to hear and determine all the issues to Hon. Hooper C. Van Voorst, who, on or about the 7th day of June, 1887, made and rendered his report, whereby he directed judgment in favor of plaintiffs and against the defendant Samuel H. Crook, for the relief -demanded in the complaint, and further directed judgment to be entered accordingly, with costs against the said defendant. Dendant’s attorney of record is and has been the Hon. Abraham B. Tappen.

Judge Tappen did not participate in the trial of the action before the said referee on account of illness, and John L. Hill, Esq., acted as counsel upon said trial and took sole

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charge thereof. It is alleged on behalf of defendants that-at Mr. Hill’s personal request a copy of the referee’s decision, was served upon him on June 17, 1887, instead of upon plaintiff’s attorney of record, and that Mr. Hill admitted due service thereof in the name of said attorney of record. Thereafter a judgment was entered upon said referee’s report for the relief demanded in the complaint, and granting-costs against the plaintiffs and on or about the 2d day of August, 1887, a copy of said judgment and a notice of entry thereof were delivered, during the absence of said Abraham B. Tappen, to John A. Carney, Esq., an attorney at law, who occupied offices with the said Tappen, and who-was in charge of said offices at the time of such service. No notice of appeal from said judgment has ever been served, either upon the attorney for the defendant or upon the clerk of this court. After the service of said judgment- and said notice of entry thereof in the office of the attorney for the defendant, certain negotiations for a settlement of the controversy between the parties were had, in which the attorney for the plaintiff participated.

A part of the scheme of settlement proposed and considered on such negotiations, was that the defendant should not appeal from the said judgment entered as aforesaid upon the report of said referee. No result was reached' upon such negotiation and no agreement of settlement was-entered into between the parties. The. defendant Samuel H. Crook seeks on this application to require the plaintiffs to serve upon his attorney a copy of the referee’s report-herein, with a copy of the judgment entered thereon. He also asks for ten days’ time from such service to make, file and serve exceptions to said report. He further demands that he be allowed thirty days from the service of such judgment upon him to serve a notice of appeal therefrom, and that plaintiff’s attorney be required to accept the-same.

Said defendants’ application was refused at the special term of this court, and from the order thereon entered, this appeal is taken.

Lewis Johnston, for resp’ts; Abraham B. Tappen, for app’lts.

In regard to the service of the judgment, there can be no doubt but that the same was proper and sufficient under subdivision 2 of section 797 of the-Code.

Mr. Carney occupied offices with Judge Tapper, the-defendant’s attorney, which had an entrance in common. The office was open at the time of such service, but the-defendant’s attorney was absent therefrom. Mr. Carney,.

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however, was present in such offices, and even if he had not assumed to admit service of such judgment in the name of the defendant’s attorney, I should have no hesita tian in holding that he had charge of said office within the meaning of section 797.

If, therefore, the service of the judgment and notice of entry thereof was sufficient to limit defendant’s time to appeal, we are powerless to grant any relief on the present - application, even if on the inherent equities of the case we might be inclined to do so.

It seems that the copy of the referee’s report was not. served upon the defendant’s attorney personally, and was not served at all at his office. In lieu thereof such service was made upon John L. Hill, Esq., who acted as counsel for said defendant upon the trial. It is asserted on behalf of the said defendant that Mr. Hill was not authorized to receive or accept service of any papers. On the other-hand, it is alleged by plaintiffs’ attorney that the service of the copy of the referee’s report was made upon Mr. Hill, upon his special request and upon his representation that he had power to admit service thereof, in the name of the defendant’s attorney.

It is not denied that Mr. Hill did admit service of such, report in the name of defendant’s attorney. Upon these facts and in the absence of any affidavit of Mr. Hill as to whát his authority was in the premises, I should deem it necessary to have an inquiry instituted, by reference or otherwise, as to whether or not the counsel for defendants had been authorized to admit due service of the referee’s report in the name of the defendant’s attorney, if the legality or proper form of such service were an essential feature on this application.

But, under the present provisions of the Code; I think the manner of the service of the referee’s report is immaterial in view of the fact that there is no doubt, but that the judgment itself and the notice of entry thereof were duly served.

Section 1228 of the Code provides that “where the whole issue is an issue of fact which was tried by the referee, the report stands as a decision of the court. Except where it is otherwise expressly prescribed by law, judgment upon such a report or upon the decision of the court upon the trial of the whole issue of fact, without a jury, may be entered by the clerk as directed therein upon filing the decision or - report.” It follows from this language that judgment can be regularly entered upon the report of the referee simply upon the filing the same with the clerk of the court and without serving a copy thereof upon the at

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torney for the opposite party. Under the old Code the Tule was different, and provided that judgment might be •entered “not upon filing the decision or report, ’’.but “after the expiration of four days from the filing of the decision or report, and the service upon the attorney for the adverse party of a copy thereof and notice of the filing, but not before.” Sections 2G7, 272, old Code.

The language of the old Code was unmistakable and imperative that a judgment upon the report of a referee ■could be regularly entered only after the expiration of four days, and the service upon tlie opposite party of a copy thereof. The omission of the language in the present law is equally significant and shows that the intention of the legislature was to allow judgment to be entered under such circumstances simply upon filing the referee’s report. This .having been done, the judgment was regularly entered, and .all that the said defendant was entitled to in order to have his time to appeal limited was service of a copy of the judgment and the notice of entry thereof.

It appears that such judgment and such notice were duly served upon him, and plaintiff’s present prayer is, therefore, nothing more or less than an application to extend his time to appeal, and this, it is well settled, is beyond the power of a court to grant. Lavelle v. Shelly, 24 Hun, 642 ; Piper v. Van Buren, 27 id., 384; Durant v. Abendroth, 8 Civ. Pro. Rep., 87; Clapp v. Hawley, 97 N. Y., 610 .

The order appealed from should be affirmed with costs.

Daly and Var Hoeser, JJ., concur.