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Doremus v. Doremus

59 N.Y. St. Rep. 324 Court N.Y. Gen. Term Decision date 1894-03-16 English

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Charles C. Doremus, Resp’t, v. Arieanna M. Doremus, Individually and as Executrix of, etc., Resp’t. Bliss & Schley, App’lts.
(Supreme Court, General Term, First Department,
Filed March 16, 1894.)

Headnote

Reference—To hear and report.
Upon a reference to hear and report with opinion of referee,' exceptions to the report are unavailing; they may he taken to the decision of the court in passing upon the report.
Appeal from an order confirming the award of the referee to the attorneys of plaintiff for their services.
Bliss & Schley, in pro per.; Theodore H. Sillcman, for resp’t.

The reference in this case was not to hear and determine, but to take the evidence, and report it to the court, with the opinion of the referee thereon. -Exceptions' to such a report are unavailing, as exceptions can be taken only to the determination of some court or officer having power to decide the question the decision of which is challenged. Under this reference it was the duty of the court to determine the facts and the

p. 325
law, and, if the determination was unsatisfactory to either party, exceptions should have been filed to its decision. None having been filed and served, the record presents no question for review. It will be seen from this conclusion that we do not agree with the respondent in his contention that it was necessary to file exceptions to the report of the referee, and that the failure to so file them would, after eight days, result in the confirmation of the report. As correctly stated in Attorney General v. Continental Life Ins. Co., 64 How Pr. 93 :

“The thirtieth rule of the court, as to the necessity of filing exceptions to a referee’s report, has no application to a reference of .this nature and character. It is only a reference which empowers a referee to decide questions between parties that the rule is applicable, and cannot foreclose the court from passing upon matters which such court only has power to determine.’’

The motion to confirm the report could be resisted at special term upon any grounds appearing in the record, without exceptions having been filed to the report; but after the questions of fact and of law had been finally determined by the special term exceptions should have been filed, in order to successfully challenge the decision.

Our conclusion is that the order should be affirmed, with $10 costs and -disbursements. •

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