Martin v. Hodges — 9 N.Y. St. Rep. 423

Majority

p. 423

Alvin Martin, Resp’t, v. James M. Hodges et al., App’lts.

(Supreme Court, General Term, Fifth Department,

Filed June 25, 1887.)

Headnote

1. Reference—Report of referee—What not within rule SO of general rules of practice.

It is provided by rule 30 of the general rules of practice, that “ in ref erences other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, * * * the report shall become absolute, and in all things confirmed unless exceptions thereto are filed and served within eight days after service of notice of the filing of' the same.” Feld, that this rule has no application to references made for the purpose of aiding the conscience of the court in questions pending before it.

‘2. Same—Report on reference to ascertain date of service of a PLEADING.

Feld, that a reference to ascertain the date of service of a complaint in order to find whether the defendant had made a default in pleading which was ordered upon a motion to open a default taken by the plaintiff, was of this nature.

3. Same—Motion—What constitutes a single motion.

Feld, that a motion to open the default having been made, and the hearing thereof postponed until the coming in of the report of the referee, the hearing had subsequent to that event with the former, constituted but one motion, and the costs of but one motion could be imposed upon the party moving that the default be opened.

4. Same—Practice in ordering such reference disapproved.

F Id, that the practice of ordering such a reference was unusual, and should not be followed except in cases where the court was unable to determine the facts from the papers read before it.

Appeal from an order of the Erie special term, confirming the report of a referee, and granting leave to answer upon the payment of thirty-two dollars costs.

N. H. Hill, for app’lts; Wiltsie & Lewis, for resp’t.

The plaintiff entered judgment on default.. The defendant moved to have the default opened and for leave to answer. The moving affidavits were to the effect-that the complaint' was served on the tenth day of July, 1886, and that the defendants had twenty days thereafter in which to serve their answer, and that on such twentieth day the answer was duly served upon the plaintiff’s attorneys. The opposing affidavits were to the effect that the complaint was served on the ninth day of July, and that consequently the defendants were in default in not serving-their answer within twenty days thereafter.

Upon the hearing of the motion the special term made an order to refer the matter to E. R. Bootey, Esq., to take proof as to the time when the complaint was served and to report to the court. Thereupon the parties appeared before the referee so appointed, who took the evidence submitted by the respective parties and reported the same to the court, together with his opinion to the effect that the complaint was served on the ninth day of July, instead of the tenth of July, as claimed by the appellants. The court thereupon confirmed the referee’s report and made an order allowing the defendants to answer upon payment of $20.00 motion costs and $12.00 disbursements. From that order this appeal was taken. It is now contended that the court had no power to confirm the referee’s report for the reason that it had not been filed in the office of the clerk of the county eight days, in accordance with the requirements of rule 30.

That rule provides that “ In references, other than for the trial of the issues, in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses shall be signed by them, and the report of the referee shall be-filed with the testimony, and a note of the day of the filing shall be entered by the clerk in the proper book under the-title of the cause, or proceeding and the said report shall become absolute and stand, as in all things, confirmed unless-exceptions thereto are filed and served within eight days after service of notice of the filing of the same. If exceptions are filed and served within - such time, the same may be brought to a hearing at any special term thereafter, on the notice of any party interested therein.”

The matter referred in the case under consideration was pending before the special term and the reference ordered was merely to aid the court in determining the questions involved in the motion. The evidence was returned with the report of the referee. The report of the referee was in no wise binding upon the court, for it had the power to disregard it and draw its own conclusions from the evidence. (Marshall v. Meech, 51 N. Y., 140 .)

The report, if filed with the clerk under the provisions of' the rule, would stand confirmed if no exceptions were filed after the expiration of eight days. But this would not determine the motion, for it would still be pending before the-

p. 425

special term, and the court as we have seen would not be bound by it. For this reason we conclude that the rule has no application to references made for the purpose of aiding the conscience of the court in determining questions pending before it.

Where a referee is to report the evidence together with his opinion thereon, it has reference to the case where an order of reference is made under some provision of the statute in which the questions referred are to be determined by the referee.

It is contended on the part of the appellants that unless exceptions were filed to the report, that they have no opportunity to review the same. That is not the case; an opportunity is given to review the same when the evidence and report are brought before the special term, and again by appeal from an order made by the special term thereon.

We have examined the evidence taken before the referee and are of the opinion that it sustains the report. It is true that the evidence is conflicting, but this court cannot reverse upon that ground.

The charging of the defendants $32.00 costs as a condition for answering for a mistake of a single day, doubtless honestly made, is somewhat of a hardship. It is not the usual practice to order a reference in such a case, and we think the practice should not be followed, except in extraordinary cases where the court is unable to determine the facts from the papers read upon the motion. In this case there was but one motion, and that was to vacate the judgment, open the default and permit the defendants to answer. On the first hearing this motion was not disposed of but was postponed until the coming in of the referee’s report. The hearing upon the return of the referee’s report was but a continuation of the same motion', and we are of the opinion that the court did not have power to allow two motion costs.

The order of the special term should be modified by deducting therefrom ten dollars costs, and the appellants should have ten days after the entry of this order in which to comply with the conditions of that order, and the order as so modified should be affirmed.

So ordered.

Smith, P. J., and Bradley, J., concur.