Tallmadge v. Lounsbury — 36 N.Y. St. Rep. 684

Majority

p. 684

Daniel W. Tallmadge et al., App’lts, v. Phineas C. Lounsbury, Pres’t, Resp’t.

(New York Superior Court, General Term,

Filed March 2, 1891.)

Headnote

Reference—Report.

Within sixty days after the submission the referee filed a document which contained a statement of his reasons for his final action, and gave judgment dismissing the complaint. Meld, that although it contained no findings of fact, as required by the Code, the omission thereof did not prevént it having the character of a report, even if it was imperfect and an insufficient foundation of a judgment, and that plaintiffs were not entitled to have the reference ended under § 1019 of the Code.

Appeal by plaintiff from order denying motion to vacate a judgment against him.

Alexander /S’. Bacon, for app’lts; Blanchard, Cay & Phelps, for resp’t.

The action had been referred to a referee to hear and determine. Within sixty days from the time the cause

p. 685

was submitted, there was filed a document made by the referee. This was assumed to be a decision or report of the referee, and upon it judgment was entered in favor of the defendants. After the expiration of the sixty days, a notice was given to end the reference on the ground that no report had been filed with the clerk or delivered to one of the attorneys, as provided by § 1019, Code Civ. Pro. And thereupon the motion below was made and denied.

The ground taken by the plaintiff was that the document referred to was not a decision or report of the referee, within the meaning of the Code. That document was in its beginning a statement by the referee of reasons for his final action, and it ended: “ For the reasons stated, I am forced to the conclusion that whoever may owe the bill in suit, the defendant certainly does not, and I therefore believe the bill ought to be dismissed upon the merits, with costs; judgment accordingly.”

This is substantially a direction that there should be judgment for the defendants that the complaint should be dismissed. Although it is the case that the document contained no findings of fact, as required by the Code, this omission did not prevent the document having the character of a report, even if such report be extremely imperfect and an insufficient foundation of a judgment. The referee had made, within the intent of § 1019, his report within the sixty days, and having made it, such as it was, the plaintiff was not entitled to end the reference and to have the cause proceed as if there had been no reference. The judge below, therefore, was right in refusing to vacate the judgment under the notice given. This conclusion leaves the parties to the appropriate remedy in a case where there has been a report and judgment upon it cannot be entered properly.

. To the case as it was presented by the motion it was immaterial that the decision had not been made part of the judgment roll. Under § 1019, it was enough that the decision had been filed within sixty days.

Order affirmed, with ten dollars costs.

Sedgwick, Oh. J., Truax and Dugro, JJ., concur.