Hyperlawhypertext legal database First National Bank of West Troy v. Levy 3 N.Y. St. Rep. 298

← Cases

First National Bank of West Troy v. Levy

3 N.Y. St. Rep. 298 Court N.Y. Gen. Term English

Delivered by Landon, J.

Contents

Majority

p. 298
The First National Bank of West Troy Resp’t, v. Margaret Levy as Exr’x, App’lt.
(Supreme Court, General Term, Third Department,
Filed September, 1886.)

Headnote

Practice—Costs—Referee’s report—Equity action.
The report of a referee was sufficiently full to pemiit the entry of judgment thereon determining the issues of the case. The report not awarding costs none could he adjudged in favor of or against either party. The referee made a certificate however that he intended to award costs to the plaintiff, hut hy inadvertence omitted to do so. Held, that the practice of sending a report hack to the referee to supply alleged omissions ought not to he encouraged, and if allowed in any case it should he only for some technical or clerical omission and not to reinvest him with judicial functions touching the case.
Appeal from an order sending the case back to the referee, for him to pass upon the question of costs.
Smith, Fursman & Cowen, for plt’ff’s resp’t.; Modk & Buchanan, for def’t’s appl’t.

The report of the referee is sufficiently full to permit judgment to be entered thereon, determining the issues in the case. The action was in equity and as the referee did not award or deny costs, no costs can be adjudged in favor of or against either party. The referee has made a certificate in which he states that he intended to award costs to plaintiff, but by inadvertence omitted to do so. We think the practice of sending a report back to the referee to supply alleged omissions ought not to be encouraged, and if allowed in any case, it should be only to supply some mere technical or clerical omission; not to reinvest that officer with judicial functions, touching the case theretofore submitted for his decision. The necessity and propriety of such action should be - clear. We refused to send back the report in Gardner v. Schwab, ( 34 Hun., 582 ). Here the plaintiff did not submit a request for an award of costs. If this had been done possibly the defendant would have presented objections to the award proper for the consideration of the referee. In view of the certificate of the referee, if these objections should now be presented, it is difficult to see that they would be considered at their proper force.

Order reversed with ten dollars costs and printing disbursements, and motion denied with ten dollars costs.