Betjemann v. Brooks

—The court below was quite right in refusing to refer this case a second time. The trial already had shows that the examination of a long account will not be required. The action is brought to recover the value of groceries which the plaintiff claims to have delivered to the defendants’ testatrix at No. 86 Irving Place, New York city. The referee before whom the case was tried states, in his opinion, that there was no dispute as to the value of the goods, or as to their delivery at the house mentioned; and the only question seriously litigated appears to have been whether the persons who received the groceries there were the agents or servants of the former defendant, Mary 35. Brooks.

There is no good reason to suppose that the new trial will differ from the first one in this respect, and hence a compulsory reference should not be ordered.

The appellants insist that the reversal of the judgment entered upon the referee’s report did not operate to vacate the order of reference, but left that order, in all respects, in force, except as to the person who should try the case as referee; and on this point they cite Catlin v. Adirondack Co. ( 19 Hun, 389 ; 81 N. Y., 380 ).

In that case it was held that, upon-the reversal of a judgment entered on a referee’s report, the order of reference was not to be deemed vacated unless an express direction to that effect was given by the court at general term, or unless the court, at special term, vacated the order of reference upon motion.

In the present case, however, the general term order of reversal does expressly direct that the order of reference shall be vacated; so there is no room for the contention that the case still stands referred, notwithstanding the reversal of the judgment.

The order of the special term should be affirmed, with costs and disbursements.

Van Brunt, Ch. J., concurs.