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Southard v. Franco-American Trading Co.

16 N.Y. St. Rep. 1008 Court N.Y. Gen. Term Decision date 1888-06-19 English

Delivered by Daniels, J.

Contents

Majority

p. 1008
Filed June 19, 1888.
CHARLES C. SOUTHARD, Resp’t, v. THE FRANCO-AMERICAN TRADING CO., App’lt.

Headnote

Reference—When report may be sent back to same referee.
Appeal from an order referring the inquiry in this action back to the referee to ascertain and report the amount due to the counsel for the receiver for his costs and disbursements, etc., in the commencement and prosecution and settlement of two actions, and permitting the referee to take the testimony of such other witnesses as either party might produce.
Seligman & Seligman, for app’lt; O. J. Wells, for resp’t.

The inquiry involved in this reference had previously been referred to a referee who made his report, but that report seems to have been

p. 1009
incomplete and unsatisfactory to either of the parties, and each of them appeared to concede the necessity of further and more definite findings'on the part of the referee. That view was adopted by the court itself, and to present the case in a more complete form this reference was ordered for a further hearing before the same referee. It was not a ca^e within section 1011 of the Code of Civil Procedure, 'where the court was required to appoint another referee, for the report was not set aside or interferred with in any manner, but it was considered incomplete, and being in an interlocutory proceeding for the information of the court, it had the right to send it back to the same referee for further information by way of additional evidence and other findings considered to be essential for the proper determination of the matter in dispute. The order was not only within the authority of the court, but it seems, in view of all the facts, to have been a very discreet exercise of its authority, for only after the reference shall be made complete in this manner can the matters in dispute concerning the fees and expenses of the counsel be surely ascertained and disposed of by the court

The rights and interests of each contestant required the order to be made as it was, and it should be affirmed, with ten dollars costs, and also the disbursements, to abide the result of the proceeding.

Van Brunt, P. J., and Brady, J., concur.