Morrison v. Metropolitan Elevated Railway Co.

Order reversed, with ten dollars costs and disbursements, and the motion denied with ten dollars costs.

Section 1011 of the Code requires a reference to be ordered “ upon the consent of the parties, manifested by a written stipulation signed by their attorneys and filed with the clerk.” And rule 11 of the General Rules of Practice provides that no oral agreement entered into between the attorneys or counsel for the parties shall be binding. It is conceded that no written stipulation signed by the attorneys has been filed Here, nor do we find any agreement between the parties which is evidenced by a writing sufficient to bind them. All that appears is that negotiations were pending .looking towards a reference of these cases, and before the referee was selected, or the particular cases in which a reference was to be had was agreed upon, the plaintiffs terminated the negotiations by withdrawing their consent. Under these circumstances, whatever criticism might be indulged in as to their good faith in withdrawing it after a verbal understanding had been reached, it was the exercise of a legal right which should not, against their consent, be interfered with. Our conclusion, therefore, is that the order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Van Brunt, P. J., O’Brien and Follett, JJ.