Amberg v. Kramer — 32 N.Y. St. Rep. 177

Majority

p. 177

Gustav Amberg, App’lt, v. William Kramer et al., Resp’ts.

(Supreme Court, General Term, First Department

Filed May 23, 1890.)

Headnote

1. Reference — Substitution of referees.

After entry of an order of reference, the judge has no power to chango the name of the referee, except upon notice to the attorneys and by another order duly entered.

2. Same — Waiver of objection.

Such a substitution, however, is a mere irregularity, which is waived by proceeding before the new referee, although a statement is made that the appearance is without prejudice to an objection to the propriety of the present referee acting.

Appeal from order confirming referee’s report upon a proceeding to assess damages of defendants by reason of the granting of an injunction herein.

Joseph M Newburger, for app’lt; David Gerber, for resp’ts.

Upon the termination of this action an order of reference was granted upon notice, to assess the defendants’ damages sustained by reason of an injunction procured by plaintiff. This order appears to have been made and entered on the 12th of April, 1889. On the 8th of May, 1889, the referee named in said order resigned, and the learned judge seems, after its entry, to have stricken the name of the original referee therein named therefrom and inserted the name of a new referee without any notice to the plaintiff.

Notice having been given of proceedings before the referee, the counsel for the plaintiff appeared and stated that he wished it understood that he appeared without prejudice to an objection on his part to the propriety of the present referee acting herein on the ground that there had been no order entered substituting the present referee in place of the referee appointed by order dated April 12, 1889.

He offered in evidence the orignal order .taken from the files bearing the name of the new referee showing upon its face that the name of the original referee had been erased. The referee overruled the objection and the reference proceeded. Upon the coming in of the referee’s report the plaintiff’s attorney filed exceptions to the same, excepting to the findings contained in the referee’s report and to his conclusions of law and to the refusal of the referee to find as requested by the plaintiff.

These exceptions were overruled and the report confirmed, from which confirmation this appeal is taken.

By the stipulation entered into by the parties, it is conceded, that the amount of damages found by the referee and confirmed

p. 178

by the court is reasonable, and the only question argued upon this appeal was as to whether the whole proceeding was absolutely void because the referee was without authority or jurisdiction. Of course if the referee was absolutely without jurisdiction, proceeding upon the reference without objection did not confer jurisdiction upon him.

But we think that although the proceeding by which the new referee was substituted for the old was absolutely irregular, and if the plaintiff had moved to set the order aside as it had been altered he would have been entitled as matter of right to have the same vacated, yet it was but an irregularity which by proceeding before the referee without moving to set it aside the plaintiff waived. Roberts v. White, 73 N. Y., 375 .

The learned judge below had no authority after the order appointing the first referee had been entered to make any alteration in the same,whatever except upon notice to the plaintiff's attorney and by another order duly entered. The order after it was filed became a public record and was beyond the reach for any purpose whatever of the judge who made it, and the only Way in which it could regularly be recalled, affected or altered would be by the entry of a new order iqpon notice to the parties interested therein.

This, however, was, as already said, an irregularity which would have entitled the plaintiff upon a proper motion to have had the proceedings vacated. But it was not for the referee to determine as to whether the order was regular or irregular. He properly overruled the objection and proceeded with the reference as directed by the order; and his conclusion being correct, the exception thereto raises no question for review.

Upon the whole case therefore the order must be affirmed, but' without costs.

Barrett and Bartlett, JJ., concur.