McAllister v. Case — 13 N.Y. St. Rep. 141

Majority

p. 141

William McAllister v. Joseph S. Case et al., Resp’ts, and Henry J. Morris, App’lt.

(New York Common Pleas,

Filed January 3, 1888.)

Headnote

1. Reference—After close of case, reception of proof, or argument WITHOUT NOTICE TO ALL PARTIES, IS IRREGULAR AND IMPROPER.

It is irregular and improper for a referee to receive any proofs or hear any argument in a case after the close of the trial-without notice to all of the parties, and ordinarily such irregularity would furnish sufficient ground for setting aside the report of the referee and vacating the reference.

2. Same—Irregularity—How waived. ,

A party to whom notice of such hearing has not been given, but who is aware that it has taken place, must make timely objection to the irregularity or he will be held to have waived it.

Appeal by defendant Morris from an order made at special term of this court, denying his motion to vacate and set aside the order of reference and the referee’s report herein, on the ground of irregular and improper conduct of

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the referee in receiving evidence and hearing connsel for some of the parties after the case was closed, and in the-absence and without notice to this appellant.

The-action was brought to foreclose a mechanic’s lien against the owner, contractors and other lienors, and against this appellant Morris, who was the assignee of the contractors. The case was tried before the referee and closed on May 10th, 1887, up to which time none of thelienors had proved the-filing of a notice of Us pendens. The appellant moved to dismiss the complaint and the other claims of the defendant’s lienors, on the ground that “they had not proved any valid, continuing and subsisting lien,”' but without specifically calling the referee’s' attention to-the want of proof of filing the notice of Us pendens. Findings and briefs were subsequently submitted.

On or about June 8, 1887, the referee wrote to the attorheys of the plaintiff and of the defendants, the other' lienors, asking whether a notice of lis pendens had been filed. The plaintiff and the Hopkins & Dickinson Manufacturing Company then produced proof to the referee that they had filed notices of pendency of action; the other lienors did not; and the referee then notified the parties (except this appellant) to appear before him and argue two questions, viz., the sufficiency of one notice of Us pendens in this action for all the lienors who were parties to it, and the question of costs, and pursuant thereto the attorney for one of the defendant lienors and the counsel for the owner attended before the referee and argued the question as to-the notice of Us pendens and the question of costs as between the claimants and the owner.

The report of the referee was filed on July 16, 1887, in which he found in favor of the plaintiff and of the other lienor who had filed notices of pendency of action, and against the lienors who had not filed separate notices, and awarding costs against the appellant. On July 20th the appellant made his motion to vacate the order of reference and set aside the report.

It appeared that after the referee had received the proofs and heard the arguments complained of, and before he had rendered his decision.- the appellant’s attorney had notice of the irregular proceedings, but took no action until the report against his client was filed.

Wm. King Hale, for resp’ts; B. Metzger, for app’lt.

Although it does not appear that the appellant here was injured by the introduction of the merely formal proof of the filing of notices of pendency of action, and the argument of the questions arising upon the non-filing of such notices by certain lienors (which questions were ultimately

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decided in his favor), and the argument of the question of' costs as between the lienors and the owners, yet it was undoubtedly irregular and improper for the referee to receive any proofs and hear any argument after the case was closed, without notice to him, and under ordinary circumstances, the report would have to be set aside and the reference vacated for such irregularity; but it appears that the appellant here had notice of the irregularity complained of and made no objection until after the referee rendered his decision.

This is a waiver of objection. After he was apprised, of the proceedings of the referee, if he disapproved of them he should have objected. “He ought not to be permitted, after having lain by and taken the chance of a favorable award to object when he finds the award against him.” Fudickar v. Guardian Mutual Life Insurance Company, 62 N. Y., 392 , 405.

In that case the parties had agreed to arbitrate, qnd after the case had been closed the arbitrator wrote to the defendant for a statement of the plaintiff’s account with" them and their objections to certain of his charges. The statement was sent and the arbitrator showed it to the plaintiff, who claimed the right to answer it;" the arbitrator told him he might do so if he concluded to use it, but that he thought then he would ignore it. Plaintiff assented, and the arbitrator subsequently advised him that he should not regard it and, as he testifies, “threw it out of consideration utterly and ignored it.” The court said that the letter of the arbitrator did not call for the defendant’s books or a transcript from them, but for their answer or claim to certain credits or charges not appearing on the books, and thought it. sufficient ground for setting aside the award, saying that “ any violation of natural justice by an arbitrator such as receiving material evidence from one of the parties without the knowledge or consent of the other should be condemned,” but, in view of the fact that the plaintiff was apprised of it and made no objection until after the decision against him, he was not entitled to relief; using the language quoted above.

The same rule was applied in a case where the referee made a report in favor of a party whose counsel was referee in an action (pending at the same time with that case), in which the first named referee was cotinsel. It was held that where each of two attorneys in different actions has the other in his hands to decide as referee, a due regard for judicial propriety and for the pure administration of justice requires that upon the application of the opposing party, in either action, made in due season and under circumstances not amounting to a waiver, the court

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should vacate the reference and set aside the report if one has been made, but that the objection might be waived, and inasmuch as the party making such application knew of the facts some time prior to the decision of the referee in his case he must be refused relief, the court saying that a party knowing the objection, had no right to lie by after permitting the reference to proceed and taking the chance of success. Carroll v. Lufkins, 29 Hun, 19 , G. T., fourth department.

And in a case where a juror stopped the plaintiff, after he left the stand and was passing the jury box, and asked him some questions, and the plaintiff showed him a paper containing the advertisement, which was the object of the action; and the defendant and his counsel failed to call the attention of the court to the circumstance, although they knew of it, but allowed the case to proceed, they waived the objection, and were not entitled to a new trial on the ground of the irregularity and the misconduct of the juror, having knowingly taken the chances of a favorable verdict and “miscalculated the result.” Valiente v. Byran, 66 How., 302 .

The affidavit of Mr. Strong, counsel and attorney for the lienor, the Hopkins & Dickinson Manufacturing Company, states positively that in his conversation with Mr. Hall, the attorney for this appellant, and Mr. Sanborn, the attorney for the owner, he learned that Mr. Hall was informed by Mr. Sanborn of this argument between the deponent and Mr. Sanborn before the referee “ within a very few days after it occurred and long before the report of the referee was made so that Mr. Hall has, in effect, been waiting to see what the decision of the referee would be, before he took any action based upon the alleged irregularity of such argument.” The argument referred to embraced the questions arising upon the notices of lis pendens filed after the close of the case and also the question of costs. This allegation is not denied by Mr. Hall. In his brief on this appeal he stated that the conversation took place after July 1st, the date of the report, but there is no proof of it in any paper read on the motion and the report was not filed until July 15th. I think, therefore, that the facts of this case bring it within the rule applied in the authorities cited above.

The order should be affirmed with costs.

Van Hoesen, J., concurs.