Niebuhr v. Schreyer — 18 N.Y. St. Rep. 814

Majority

p. 814

Margaret E. Niebuhr, Pl’ff, v. John Schreyer, Def't.

(New York Common Pleas, Special Term,

Filed October 18, 1888.)

Headnote

1. Practice—Accounting—Action for—Judgment in—Entry of—What is irregular.

The plaintiff claimed a partnership between herself and the defendant, and demanded an accounting. The defendant denied the co-partnership, and all the issues were referred to a referee to hear and determine. He made a report, finding the plaintiff entitled to an accounting as to certain, matters mentioned in the complaint, but not as to others, and that either party was entitled to enter an interlocutory decree. An interlocutory decree was thereupon entered, adjudging the rights of the parties as found by the referee, and referring it to him to take and state the account between the parties. He went on with the accounting and made a report, finding a balance due the defendant, and ordered judgment for him, with costs accordingly. This report was not filed with testimony of witness, as required by rule 80, nor were eight days allowed for exceptions; but the defendant, on filing the report, immediately entered an ordinary money judgment in his favor, against the plaintiff, for the sum reported due with costs. Held, that this judgment was irregular, and should be set aside.

2. Same—Action for—Judgment in—Regular mode of entry.

• Held, that the report of the referee upon the accounting should have been filed, with the testimony, as required by rule 80; the plaintiff should have had time to file exceptions, which should have been brought to a hearing at a special term, and a final decree entered thereon.

Motion by plaintiff to set aside, as- irregular, judgment entered herein by defendant on August 27, 1888, and that the defendant file with the report of the referee, filed August 27, 1888, the testimony, etc., pursuant to rule 30.

Thomas M. Tyng, for pl’ff; Alexander Thain, for def't.

This was an action in which plaintiff claimed a partnership between herself and defendant, and demanded an accounting, etc. The defendant denied the copartnership, and all the issues were referred to a referee to héar and determine. He made a report finding that the plaintiff was entitled to an accounting as to certain parpéis of real estate mentioned in the complaint, but not as to others, and that such accounting should be brought upon two days-notice; and that the question of a certain counterclaim set up in the answer should be reserved to such accounting, and that either party was entitled to enter an interlocutory decree on the report and ordering such decree.

An interlocutory decree was thereupon entered adjudging the rights of the parties as found by the referee and referring it to him to take and state the account between the' parties. He went on with the accounting and made a report finding a balance due defendant of $251.37, and ordered judgment for him, with costs, accordingly. This report-was not filed with testimony of witnesses as required by rule 30, nor were eight days allowed for exceptions, but the-

p. 815

defendant, on filing the report, immediately entered an ordinary money judgment in his favor against plaintiff for the sum reported due, with costs.

This judgment was clearly irregular. The report of the referee upon the accounting should have been filed, with the testimony of the witnesses, as required by rule 30, the plaintiff should have had her time to file exceptions, which should have been brought to a hearing at a special term, and a final decree made thereon. It is claimed that the referee proceeded with the accounting under the original order of reference of the issues, and that his final report did not require final confirmation, but that judgment was to be entered thereon in accordance with such report (Code, § 1228); but this position cannot be maintained. After the entry of the interlocutory decree, which contained an order referring the accounting to the same referee, the subsequent proceedings were had under that order of reference, and not under the original reference of the issues. Under the original reference of the issues the referee could have heard all the evidence upon the issues and then proceeded to take the account, making a single report on the whole case, upon which a final decree might have been entered without application to the court. This was done in Palmer v. Palmer ( 13 How. P. R., 363 ), but the court there say that it would be better practice to make a separate report, declaring the existence of the co-partnership, and the liability to account.

The referee in this case followed the regular practice in making his report upon the issue of copartnership before taking the account.. “ When the whole of the issues raised by the pleadings have been so referred, it has been recom- " mended as the better course for the referee to hear and determine such issues in the first instance separately, and report thereon to the court. If these are determined in favor of the plaintiff, and his right to an accounting be thereby established, he may then move on the report for another order confirming the report, and referring the cause (usually to the same referee) to take and state the account between the parties. 2 Van Sant. Eq. Pr., 194 (3d. ed.). The same authority on the practice in such cases lays down the course of procedure on the accounting so ordered, and in the making and filing of the report thereon; by which it appears that the proceedings in respect thereto are to be had under rule 30, and that after the hearing of the exceptions, if any, a final judgment is to be entered, embracing in effect, the findings upon the issues as well as adjudging the amounts or balances found due upon the accounting. Id., 210.

This practice should have been followed in this case, and

p. 816

not having been, the judgment must be set aside. The testimony of the witnesses must be filed with the report, and notice thereof given to the plaintiff, and the proceedings, will then be bad under rule 30.

Motion granted, with ten dollars costs.