Manning v. Manning — 67 N.Y. St. Rep. 766

Majority

p. 766

Mary Manning, Resp’t, v. John B. Manning, App’lt.

(Supreme Court, General Term, First Department,

Filed May 17, 1895.)

Headnote

Reference — Interlocutory judgment.

"A referee, to whom a cause has been referred to hear and determine, may, in his discretion, either report in favor of an interlocutory judgment for an accounting to be taken before another referee, or, after determining-the rights of the parties, take and state the accounts and include the whole matter in his report, as a basis for a final judgment.

Appeal from an order, granting a motion to set aside the referee’s report and the interlocutory judgment entered thereon.

Thomas M. Rowlette and John A. Straley, for app’lt; Robert D. Murray, for resp’t.

The learned judge at special term, in his statement of the reasons which persuaded him to set aside the report-of the referee, directing the entry of an interlocutory judgment, requiring the defendant “ to account to the plaintiff” for all interest, income,.and profits arising out of or resulting from the accounts opened by him in her name, and that he pay over and deliver to her all certificates of stocks, bonds, bank notes, money, or other property which, upon said accounting, may be found to be due to her,” and the interlocutory judgment entered thereon, conceded, that, in some cases, a referee has the power, and it is also his duty, to report in favor of an interlocutory judgment.- This concession *s in accordance with the practice as settled in Mundorff v. Mundorff, 1 Hun, 41 . In that case it is held that the practice in vogue, prior to the adoption of the Code, of determining the rights of parties in suits at equity in the first instance, and declaring such rights by an interlocutory decree, which also provides for the manner in which the accounting should be had, and referring the case to a master for that purpose, still continues in full force, and that a report of a referee, to hear and determine, sustains all the relations to the case that the former interlocutory decree did in hearings had in the court of chancery. The order of reference in that case, was “ to hear and decide all the issues in the action, and to take any account that he may determine should be taken.” The referee made a report deciding the equitable-rights of the parties, and directing an accounting. Subsequently, on motion of plaintiff’s attorney, an order was made at special term referring the case to another referee to take and state the acl count, and the question of practice was presented by an appeataken from 'that order. This case has been frequently cited with approval. Hathaway v. Russell, 45 N. Y. Supr. Ct. 538 , and note, affirmed in 46 N. Y. Supr. Ct. 103 ; Seymour v. Association, 45 St. Rep. 520 ; Bank v. Morton, 40 N. Y. Supr. Ct. 328 -337. Ht has not been criticised, so far as we have observed, although the conclusion was reached in Gareznski v. Russell, 75 Hun, 495 ; 57 St. Rep. 673 , that, under such an order of reference, the referee should hear and determine all the issues made by the pleadings, and, if the proof entitled the plaintiff to an accounting, that the referee should take and state the account as a part of his report.

p. 767

We do not understand that case, however, to deny that a referee has the power in certain cases, to report in favor of an interlocutory judgment; for, in the opinion expressing the views of a majority of the court, it is distinctly stated that the power of the court, in a proper case, to settle an interlocutory judgment upon the report of a referee, and to appoint another referee to take the accounting provided for by such judgment, is not questioned. But, were it otherwise, we should still feel called upon to concur in the position taken in Mundorff's Case and the authorities following it, to some of which we have referred. Conceding the power of a reference, in any suit in equity, to make a report directing the entry of an interlocutory judgment declaring the rights of the parties., and directing that an accounting be had, it is difficult to see any basis for the order under review. This was a suit in equity, the plaintiff claiming certain rights and interests which the defendant denied. If found in her favor, she was entitled to an accounting from the defendant, in order to ascertain what interest, income, stocks, bonds, and other chattels she was entitled to from him-. It may well be, that, in this particular case, it would have been better for all the parties, had the referee taken and stated the account in his report, upon which could have been entered a final judgment. The special term was impressed with this view, and it is not unlikely that its view, rather than the referee’s was the correct one; although, judging from the meagerness of the record before us, the referee had an advantage in passing upon that question, because having the evidence before him. But as this was a suit of such a nature as called upon the referee to determine whether an interlocutory judgment should be entered after determining the rights of the parties, or whether the accounts should be taken in addition, and the whole matter included in his report, as a basis for final judgment, he was at liberty to determine which course was the proper one to pursue ; and with his determination of the manner in which he should exercise such discretion the courts should not interfere, unless it appears that there was an abuse of discretion. This question was before the court in Palmer v. Palmer, 13 How. Pr. 363 , where the court said:

“ The mode of conducting its trial, therefore, must be within the discretion of the referee, so far as relates to all questions within the ordinary discretion of a judge on the trial of a cause. If this cause had been tried in court, the judge would most likely have gone so far as to make an interlocutory order or decree for an account. But it would have been entirely competent for one of the judges of this court, at special term, to have gone on and tried the whole cause, and taken and stated the account, and found its result, as the referee has done here.”

The argument of the court was that the trial is to be conducted before a referee as before one of the judges of the court, and, for the purposes of the trial and disposition of the cause, he has, for the time being, the ordinary powers of the court. This referee might have disposed of all the questions, including the account, in a report for final judgment; but having in mind the power of the court at special term, and of referees appointed by the court

p. 768

in such cases, he reached the conclusion, as we must presume, that, under the facts of this case, it was his duty to direct the entry of an interlocutory judgment. Certainly there is nothing in this record which warrants the court in holding that there was in this case an abuse of the discretion which the law confers.

The order should be reversed, with $10 costs and printing disbursements.

Cases cited

Palmer v. Palmer 13 How. Pr. 363 N.Y. Sup. Ct. p. 767