Hyperlawhypertext legal database Healy v. Gilman 29 N.Y. Super. Ct. 479

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Healy v. Gilman

29 N.Y. Super. Ct. 479 6 Rob. 479 Court N.Y. Super. Ct. Decision date 1866-06-30 English

Contents

Majority

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Aaron Healy et al. ex’rs &c., plaintiffs and respondents, vs. Winthrop W. Gilman, defendant and appellant. The Same, plaintiffs and appellants, vs. The Same, defendants and respondents.

Headnote

1. Where the parties to an action consented, in writing, to an order of reference of all the issues therein to three referees, and at the same time entered into a stipulation annexed to such consent, signed by themselves and their attorneys, whereby they prescribed and limited evidence to be introduced before such referees on such referenpe; fixed the time for rendering their report; made it final; provided for entering judgment thereon in the usual manner; and waived any right of appeal from such judgment; but provided that the author
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ity of two of the referees, named, should cease, in case the report was not “ rendered ” within a given time after certain evidence was introduced; and the third should proceed as sole referee, and “ render ” a report on the same evidence, within a certain time after such termination of the authority of his" associates:
Held, 1. That notwithstanding such stipulation contained a provision that the same should be annexed to and form a part of the judgment roll, yet that by the consent that the order of reference should be entered in the usual form and by its corresponding entry the court retained jurisdiction of such action, as such, and did not lose it in consequence of such stipulation; particularly where the parties proceeded on the trial before such referees, without any objection. So far as either controlled the other, the order made by the court was paramount, and overruled any tendency of the stipulation to convert the reference into a mere arbitration.
2. The mere waiver of the right of appeal, as formerly of a release of errors in a judgment, neither enlarged nor diminished the powers of the referees, and did not by itself convert such reference into an arbitration.
3. Where, in such case, two of the referees made a report in favor of the defendants, the latter were entitled to enter judgment thereon, according to such stipulation, if made within the time fixed therein, and generally according to its terms.
4. The terms of such stipulation as to “ rendering ” a report were satisfied, by its being made and delivered to the successful party, for the purpose of enabling them to enter judgment upon it in the usual way,
(Before Robertson, Ch. J., and McCunn and Jones, JJ.)
Heard March 5, 1866;
decided June 30, 1866.)
This action was brought in the year 1855, to recover $22,226.99, alleged to be due from the defendant to the firm of N. Gilman & Son, under whom the plaintiffs claimed. The trial of the issues requiring the examination, of a long account, in November, 1855, on the plaintiffs’ motion, the cause was referred to a referee to hear and determine. In May, 1856, the referee reported in favor of the plaintiffs for $23,792.21. On his report, judgment being entered, the defendant appealed to the general term, and in May, 1857, a new trial was ordered. (See reasons stated in 1 Bosw. 235 .) The trial was again had before the same referee, (Mr. Maurice.) Testimony was taken and the cause was submitted to the referee. On the trial the plaintiffs had offered in evidence the books of N. Gilman & Son,
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which had been excluded on the previous trial on objections made in behalf of the defendant.
The' referee not having reported, the parties agreed to associate two other referees with Mr. Maurice; and thereupon the following order was entered, on the consent of both parties:
“ On reading and filing a consent, bearing date the 12th day of December, 1864, and signed by the parties hereto: Ordered, that the order entered herein on the 3d day of November, 1855, by which this cause was referred to James Maurice, Esq., as sole referee, be and the same is hereby vacated.
And it is further ordered, that this action and all the issues therein be, and the same are hereby referred to James Maurice, Henry G-. Lapham and Alexander Studwell, to hear and determine the same, and that this order be entered mine pro. tune as of the said third day of November, 1855.”
The parties, at the time of consenting to such order, entered into the following stipulation or agreement which was signed by them, individually, as well as by their attorneys :
[Title of cause.] “ The parties hereto stipulate as follows:
First. The order entered herein, on the third day of November, 1855, shall be vacated, and the order hereto annexed shall be entered nunc pro tunc as of that daté.
Second. All the testimony taken in this case, before Mr. Maurice, on the second trial, shall be considered as having been submitted to the referees named in the annexed order by the parties by whom it has been offered, respectively, and shall have the same weight and effect as if it had been taken before them.
Third. The plaintiffs shall also produce and put in evidence. before the said referees, all the check books, memorandum books and books of account of Nathaniel Gilman & Son, which h*ave come to their possession, containing any entries or memoranda subsequent in date to December 1st, 1846.
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Fourth. The plaintiffs shall also produce, and the defendants shall put in evidence before the said referees, a certain agreement in writing between the said firm and Isaac Redington, referred to in the testimony taken herein, together with all books and papers in their possession or under their control, relating to said agreement.
Fifth. No other testimony shall be offered by either party before the said referees, or received by them.
Sixth. The said referees shall render their report within ninety days from the date when the said books shall be put in evidence, and the said agreement and the books and papers relating thereto shall be produced.
Seventh. Should the said referees, or a majority of them, fail to render a report within the said ninety days, then the authority of the said Henry G. Lapham and Alexander Studwell, as referees, shall forthwith cease,' and the said James Maurice shall proceed as sole referee, and shall render a report on the testimony herein provided for within thirty days after such termination of the authority of the said Lapham and Studwell.
Eighth. The report to be rendered under this stipulation shall be final between the parties. Judgment shall be entered thereon in the usual manner, and neither party shall appeal from the said judgment.
Ninth. This stipulation shall be filed forthwith, and shall be attached to and form part of the judgment roll herein.”
The referees appointed by this order met. The books, agreement and papers referred to in the stipulation were put in evidence on the 9th day of February, 1865, and the cause was argued orally and submitted upon written briefs. The three referees failed to agree. Two of them, however, Messrs. Lapham and Studwell, did agree. They made up and signed their report on the 21st day of April, 1865, and about four days afterwards caused notice to be given to the defendant’s attorney that the report was ready for him, on payment of fees.
In May, 1865, before the ninety days provided for in the
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stipulation had expired, the defendant’s attorney paid the fees of all the referees, and the report was delivered to him hy a person with whom it had been left for that purpose. The defendant’s attorney was proceeding to enter up judgment on the report, and had served his papers for a ¿motion for an allowance, when an order made by Justice Garvin was served on him, staying his proceedings, and requiring him to show cause why the report should not be declared void, on the alleged ground that it had not been “rendered” within the ninety days specified in the stipulation. The order to show cause came on to be heard in May, 1865 ; the plaintiffs’ motion thereon was denied, and the case now came before the court on the appeal of the plaintiffs from the order denying that motion. The plaintiffs having given notice to Mr. Maurice to make up and render a report, the defendant obtained two orders to show cause and staying their proceedings. The parties agreed < that appeals from the decisions made upon these orders should be heard with the plaintiffs’ appeal, before mentioned, and that all the papers read upon either of the motions should be considered as read upon all the motions.
The report signed by Messrs. Lapham and Studwell found that the defendant was not indebted to the plaintiffs in any sum whatever; that signed by Mr. Maurice found that he was indebted to them in the sum of $2966.20.
S. P. Nash, for the plaintiffs.
I. The agreement or stipulation entered into by the parties was, in substance and- effect, a virtual submission of the questions at issue to an arbitration, and the decision and proceedings of the referees thereunder, are to be governed and controlled by the laws of arbitration and award.
1. Every feature incident to a submission was contained in this agreement. It prescribes the particular evidence to be received, and limits the powers of the referees in that respect; designates the persons who are to arbitrate ; limits the time within which the. case is, to, be heard and the
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award rendered; provides for the failure of a majority decision ; directs the decision, when made, to be final, and prohibits an appeal therefrom; and for the purpose of making the agreement effectual and binding, the parties individually signed the same. (Russell on Arbitrators, 49. Merritt v. Thompson, 27 N. Y. Rep. 225 , 230.)
2. It created a proceeding entirely different from a reference under the Code. No witnesses were to be examined. The parties themselves, and not the referees, designated what testimony should be received, and prohibited the receipt of any additional evidence. As the admissibility of evidence was thus controlled by the parties, the referees were not governed by the legal rules of evidence. Neither was their decision subject to the confirmation or reversal of the court, for it was to be final and conclusive. In all these respects the proceeding differed from a reference. (Code, § 272. Merritt v. Thompson, 27 N. Y. Rep. 230 .)
3. Neither was such agreement made an order of the court. It provided for the entry of an order, simply vacating an order of reference originally entered in the cause, and appointing the three persons who should hear the matters at issue anew, but none of the terms, conditions or stipulations of the agreement were incorporated into such or any order of the court. By the arbitrary act of the. parties-themselves, all acts and powers of the referees were to be thenceforward controlled by the terms of their agreement and not by the court. The parties evidently intended to withdraw the case from court, and they could not have done this more effectually.
4. Whatever may have been the intent or purpose of the parties, as to which they now differ, the agreement, which must control substantially, created a proceeding radically different from a reference under the Code. Even if the parties had expressly declared that it should be so deemed, such declaration would not have changed its character. (Merritt v. Thompson, 27 N. Y. Rep. 230 . Brady v. The Mayor of Brooklyn, 1 Barb. 591 .)
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5. The referees, when they came to act under such agreement, possessed the powers of arbitrators, and no others, and their acts and doings were subject to, and to be judged by, the law governing arbitrations and awards.
II. The agreement being, therefore, in effect a submission to arbitration, and subject to those principles of law governing arbitrations, it follows that the paper purporting to be a decision of Messrs. Lapham and Studwell is .null and void, and should be set aside.
■ 1. Such decision was not rendered within the time limited for that purpose.
(a.) It is one of the essential requisites to the validity of an award, that it should be rendered to both parties within the time specified in the submission. A delivery to one party is not sufficient, and a failure to deliver the same to the other party renders the award void. (Russell on Arbitrators, 238, 239. Watson on Arbitration, 131. Pratt v. Hackett, 6 John. 14 . Buck v. Wadsworth, 1 Hill, 143 . Perkins v. Wing, 10 John. 143 . Sellick v. Addams, 15 id. 198 .)
(b.) The term “ render ” has a very different signification from the words “ make and deliver,” which are used in the Code. (§ 273.) It has the same meaning and effect as when used in connection with the rendering of a verdict by a jury, which is given in open court, within the hearing and knowledge of both parties. To “ fender,” therefore, required an announcement in form, to both parties, within the time limited, and not a delivery of the decision to one party alone.
(c.) Unless we thus interpret the word “render,” the agreement could not be carried into effect. Suppose a collusive, imperfect or erroneous report had been made by two of the referees, and delivered to one party, without the knowledge of the other. Such report could be retained until it was too late for the other party to obtain a report from the remaining referee, and although it might then be set aside,” upon motion, yet, as the power of the remaining referee to act had expired, the whole case would be thrown
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open to litigation, and the provision of the agreement for a second report would thus become entirely nugatory.
(d.) The construction thus put-upon the term “render,” is not forced or technical. It is manifest from a true construction of the agreement, that the parties intended that whatever decision should be arrived at by the referees within the ninety days limited for that purpose; should be communicated to both parties in form within that time; and as an award it could only thus have been rendered, to be valid and binding upon the parties.
2. The award should have been rendered to both parties by delivering to them, respectively, a copy thereof, duly signed by the referees who made the same.
(a.) Unless waived in express terms,' the parties must be respectively served with the original award. (Sellick v. Adams, 15 John. 198 . Russell on Arbitrators, 236.)
(b.) But in the present case, no original report and no copy thereof has been ever delivered to the plaintiffs. They have no actual knowledge of the existence of any such decision. The affidavits of the referees, Messrs. Lapham and Stadwell, attempt to show a conversation with one of the plaintiffs, when he was told that such report had been made; but this is denied by Mr. Healy, and besides, it is insufficient for the purpose claimed. A mere oral announcement, entirely informal, would not be sufficient.
(o.) Service of the award was not made upon the attorney. The paper purporting to be a report was served seven days after the expiration of the time limited' by the agreement; and was not served as a report, but merely as a. moving paper»to be read upon a proposed motion of the defendant.
{d.) The report was not filed in the office of the clerk of this court. It was a sealed paper to every one except the defendant and his attorney.
III. The decision of James Maurice was made and rendered in due form within the time allowed for that purpose, and should be declared valid and binding upon the parties. It was rendered to both parties within the true intent and
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meaning of the said agreement, within the time limited therefor. It was filed in the clerk’s office, and is the first report on file in this” proceeding. It was served by delivering original copies to the parties personally, within such time; and is, therefore, the only report which has been rendered to the parties.
TV. The plaintiffs in this action are executors. Two reports have been already had in their favor in the suit at law. The first was set aside by' the general term, upon a question of evidence. The second was abandoned, and the present proceeding was agreed upon, to prevent an expensive and tedious appeal. There is, therefore, a merit in the present application which will justify the court, if the foregoing views are correct, in setting aside the report of Messrs. Lapham and Studwell, and declaring the report of Mr. Maurice (who was the only law referee) valid and binding in accordance with the agreement of the parties.
V. The order entered herein at special term on the 25th day of May, 1865, should be reversed, and an order entered declaring and adjudging the pretended report of Messrs. Lapham and Studwell to be null and void, and of no validity, force or effect; and further declaring and adjudging the report of James Maurice, dated June 6,1865, to be valid and binding upon the parties. The orders entered herein on the 27th May, 1865, and the 29th June, 1865, should be affirmed.
G. S. Glover, for the defendant.
The only question that arises on this appeal is, was the report signed by Messrs. Lapham and Studwell “ rendered ” within ninety days from the ninth day of February, 1865. The plaintiffs do not deny that, if it is to be considered as a report of referees, it was so rendered. But they claim that the reference was in fact a submission to arbitration ; and that certain 'formalities are necessary in the rendering of an award of arbitrators, which were not observed in this case. The points presented, therefore, are:
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First. Was this a reference, or a submission to arbitration ?
Second. If it was a submission to arbitration, was the award signed by Messrs. Lapham and Studwell properly “ rendered ?”
I. The reference was, both in form and substance, a mere ordinary reference, provided for by the Code at sections 270 and 271, and not an arbitration.
1. The trial of the issues requiring the examination of a long account, the order of reference was entered upon the written consent of the parties, by their attorneys.
2. In support of the plaintiffs’ position, that the reference was a submission to arbitration, certain cases were cited by the counsel on the argument below which, however, entirely failed to sustain his position.
(a.) All that these cases decide is, that where an action not referrible in its nature is referred by consent, the reference must be considered as a submission to arbitrators. (Camp v. Root, 18 John. 22 . Miller v. Vaughan, 1 id. 315. Johnson v. Parmely, 17 id. 129.) The only principle which gov'erns these cases is, that where the parties have submitted their controversy to a domestic tribunal of their own choosing," the court is ousted of jurisdiction. Following this principle, the same rule has been applied to cases where, when the statute required three referees, the reference was. to one, two or four. (Rathbone v. Lownsbury, 2 Wend. 595 . Dodge v. Waterbury, 8 Cowen, 136. Jones v. Cuyler, 16 Barb. 576 .) Also to a case where an action at law was referred by consent, to be decided on equitable principles. (Blunt v. Whitney, 3 Sandf. 4 .) And to a case where part only of a controversy was referred by consent, no order of the court being made, and the parties stipulated that the referee should “ not be bound by strict legal rules of evidence.” (Merritt v. Thompson, 27 N. Y. Rep. 225 , 229, 230.)
(6.) But it will be found, on examining the cases, that the rule has been applied with great caution. Thus, in
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Harris v. Bradshaw, ( 18 John. 26 ,) where the action, though in assumpsit, was not referable, because it did not involve the examination of a long account; yet the parties having agreed to refer it, the report was treated as the report of a referee, and it was held that an action would not lie on it as an award. Even where actions sounding in tort have been referred by consent, if the parties have stipulated that judgment shall be entered on the report, the court will treat it as the report of a referee. (Yates v. Russell, 17 John. 461 . Green v. Patchin, 13 Wend. 293 . Ex parte Wright, 6 Cowen, 399.)
■ (e.) Thus, before the Code, and even before the revision of the statutes, the court would have held the report in this case to be the report of referees, both because the action, being on contract and involving the examination of 'a long account, was referable in its nature, and the stipulation had provided that judgment should be entered upon the report.
3. But it is claimed, on the other side, that the stipulation contains limitations of the powers of the referees, which turned the reference into an arbitration; and it is contended that the following provisions have that -effect, namely: 1st. It provided what testimony shall be submitted to the referees. Stipulations of this kind are of the most ordinary occurrence, and are proper upon any trial, whether by a court, jury or referees. 2d. It designated the time within which the report shall be rendered. This was necessary under section 273 of the Code, because the parties thought that sixty days were not sufficient for a proper examination of the case. The section itself provides for such a stipulation. 3d. It provided that if the referees, or a majority of them, did not render their report within ninety days, then the authority of Messrs. Lapham and Studwell as referees should cease, and Mr. Maurice should proceed as sole referee, and render a report within thirty days thereafter. This was simply a consent that, in a certain contingency, the order of reference to "the three might be vacated, and a -new order of reference entered to Mr. Maurice alone. Had
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the contingency arisen, the court wpuld have made such an order on the stipulation. As it did not arise, the provision has no bearing upon this argument. 4th. It provided that no appeal should be taken from the judgment. This stipulation was made and put on file, in order to bring the case within the authority of Townsend v. The Masterson Stone Dressing Co., ( 15 N. Y. Rep. 587 ,) where it was held that the court would enforce such a stipulation. It no more ousted the court of jurisdiction in this case than it did in that. Thus the special provisions of the stipulation, relied upon by the plaintiffs’ counsel in his argumant, were merely such as are frequently made by parties in the orderly conduct of a suit, and none of them in any way impaired the jurisdiction of the court.
II. Had this been a submission to arbitrators, the court would still hold that the award signed by Messrs. Lapham and Studwell was properly “ rendered.”
1. There is no general or technical rule prescribing the mode in which arbitrators shall make and deliver-their award. All that is required of them is to conform to the terms, of the submission. (Watson on Arbitration, 129 et seq., 43 Law Lib. N. S. Russell on Arbitrators, 236 to 240, 47 Law. Lib. N. S. Caldwell on Arbitration, 104-139.)
2. Two classes of cases have misled the plaintiffs upon this point:
(a.) From time immemorial the ordinary form of submission has contained our “ita quod” clause; (Oliver’s Conveyaneing, p. 197;) and it has uniformly been held that the presence of this clause made the submission conditional, and that it must therefore be strictly followed. Hence, it is easy to find cases where, the submission containing this clause, the omission to have the award ready to be delivered to both the parties on the day, has been held to be fatal. Such are the .following cases: Pratt v. Hackett, ( 6 John. 14 ;) Buck v. Wadsworth, ( 1 Hill, 321 ;) Perkins v. Wing, ( 10 John. 143 ;) Sellick v. Addams, (15 id. 198 .)
(6.) Another class of cases consists of those where ac-.
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tions have been brought on awards, and the question has been raised whether the unsuccessful party was entitled to notice of the award before suit brought. It has generally been held that he was not, unless the submission required it; although there are some decisions the other way. The case at bar cannot be brought within either of these classes of cases.
(a.) The stipulation here simply required the referees to “render their report within ninety days.” Messrs. Lap-ham and Studwell interpreted these words in the ordinary sense in which they are used in the daily practice of the court. Within the time specified they signed the report and delivered it to the attorney of the successful party, in order that he might enter judgment upon it, “ in the usual manner,” as the stipulation bad provided. In doing this they did all that would have been necessary, had the reference been an arbitration, for they conformed to the terms of the submission. It is a mistake to suppose that the conduct of arbitrators is governed by any strict or technical rules. On the contrary, the modern doctrine is that “ every reasonable intendment must be made to uphold an award.” (Ott v. Schroeppel, 1 Seld. 482.)
III. The plaintiffs were not entitled to notice at the expiration of the ninety days, in order to enable them to call on Mr. Maurice for a report, if no report had been made by a majority of the referees within that time. The whole case had been submitted to the referees, and the stipulation was before them as a part of the record. If no report had been made by a majority of them within the ninety days, it would have become the duty of Mr. Maurice to make up his report at once, and he would have done so. The interference of the plaintiffs would have been entirely unnecessary. The very argument by which they seek to establish that they were entitled to notice, if a report was not made, of itself implies that they were not entitled to such notice if a report was made. In point of
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fact, the plaintiffs received notice before the ninety days expired.
IV. Should the plaintiffs succeed upon this appeal, the result would be that the report in favor of the defendant of two .of the referees agreed upon by the parties, would be set aside, and a report of the third referee, alone, in favor, of the plaintiffs, would be substituted for it, and upon this latter report the plaintiffs would enter a judgment against the defendant, from which he would be precluded from appealing. And the court is asked to make a decision leading to this result, on the ground that the two referees, who were laymen, have omitted certain technical .'formalities in the rendering of their report, although it appears that in their action they followed the advice of the third referee, who was a lawyer, and whose decision it is sought to substitute for theirs.
V. For the reasons stated, the order denying the plaintiffs’ motion should be affirmed, with costs. And the two orders denying the defendant’s motions should be reversed, with costs. These motions were necessary for the defendant’s protection. The first was made on the receipt of the notice, when Mr. Maurice had not made up his report. On the 8th of June his report was put on file, and then the defendant made his second motion. Both motions were necessary to prevent a judgment from being entered on Mr. Maurice’s report.

The order of reference of all the issues in this action to three referees was made on the written consent of both parties annexed to the original draft of such order. Cotemp oran eously with such consent, before the entry of such order, the parties themselves and their attorneys signed an agreement or stipulation in writing prescribing and limiting the testimony to be introduced before, and received by such referees, the time when their report should be rendered, and the finality of the report so to be rendered; and also providing for entering a judg

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ment upon such report in the usual manner, and waiving an appeal from such judgment, by both parties. Such stipulation further declared that it should be filed and form part of the judgment roll in the action, and provided that in ease the report was not made by the time limited therein, the authority of two of the referees (Lapham and Studwell) should cease, and the third referee (Maurice) should proceed, as sole referee and render a report on the same testimony, within a certain time (thirty days) after such termination of the authority of his associates. The testimony so prescribed was to consist of that taken before a prior referee in this action, certain books containing, certain memoranda to be produced by the plaintiffs, and a specified agreement.

The issues were tried before such referees, by two of whom a report was signed in favor of the defendants, and delivered to their attorney, within the time fixed by the stipulation.

The entry of judgment thereon was stopped by the order to show cause, on which the order now appealed from by the plaintiffs was made, with a stay of proceedings accompanying it.

The plaintiffs claim the proceeding in question to have been an arbitration, and the report an award, because the stipulation prescribes the testimony to be received, designates the arbitrators, limits the time of rendering the report, provides for a new decision, waives an appeal, and is signed by the parties. They insist, also, that the report as an award is void, because no notice of it was given to them. The order of reference was made in the usual form, without any limitation or proviso, by consent of the parties, signed cotemporaneously with the stipulation, and was entered, and proceeded on afterwards without objection by either party. Such an order, so made and proceeded on, could not well take a cause entirely out of court, which, on the contrary, thereby necessarily retained jurisdiction of it. So far as either controlled the other, such order must have been paramount, and superseded any tendency of such stipulation

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to take the cause out of court. If the order of reference so retaining the cause in court had not been made according to the understanding of the parties, or was to be controlled by the stipulation in that respect, the remedy was by application to the court to modify or vacate such order. The consent to entering the order was entirely distinct and separate from the stipulation, and presupposed its subsequent entry, and therefore, on such an application, unless the terms of the latter were strong enough either to take away all the powers of the referees as officers of the court, or to give them wider discretion than as such they were entitled to (Merritt v. Thompson, 27 N. Y. Rep. 225 ; Blunt v. Whitney, 3 Sandf. 4 ) in admitting or rejecting evidence or claims, I apprehend the parties ■ would be held to the terms of their consent. The provision as to taking away the powers of two of the referees, and conferring the whole upon one, after a certain time, might have been a good ground, if the cause remained in court, for applying to the court to vacate the order of reference, and make a new one, but could not, ipso facto, render a report made under the first order of reference void, and clearly could not make good a report by one, to whom alone no order of reference had been made. The terms of the stipulation as to the admission and exclusion of evidence is nothing more than is done daily upon almost every trial in court. Parties do not take a case out of court, on a trial, by either waiving an objection to, or introducing illegal evidence, or agreeing to forego legal evidence. Such an agreement restricted their powers as arbitrators as much as it did as referees. The nomination of the referees was followed in the order of reference.' A consent to have them appointed does not take away the jurisdiction of the court, as fully appears by the 273d section of the Code. The waiver of a right of appeal, like a release of error in a judgment formerly, does-not enlarge or diminish the powers of the referees, and would mot alone convert a reference into an arbitration. (Townsend v. The Masterson Stone Dressing Company, 15 N. Y. Rep.
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587 .) The signature of the parties to the stipulation, which was not necessary to a submission in order to take a case out of court, (Wells v. Lain, 15 Wend. 99 ,) was a proper measure of precaution by the attorneys to protect themselves against a. charge of exceeding their authority, but it was also signed by the attorneys, as required by the rules of the court, to make a binding stipulation in the cause. All the terms of this stipulation are often contained in various ones given in the course of a cause; their embodiment in one paper gives them no more efficacy than if scattered through several.

But besides this, the stipulation contained an agreement that judgment should he entered upon the report in the usual manner; and it has been held by the court of last resort in this state, even when the reference of actions not referrible, or to more or less than three, created arbitrations, (Miller v. Vaughan, 1 John. 315 ; Dodge v. Waterbury, 8 Cowen, 136; Jones v. Cuyler, 16 Barb. 576 ,) that such a stipulation retained the case in court sufficiently to allow such judgment to be entered as one by consent, (Yates v. Russell, 17 John. 461 ; Green v. Patchin, 13 Wend. 293 ,) although the contrary was determined when there was no such stipulation. (Camp v. Root, 18 John. 22 . Green v. Patchin, ubi supra.) And a submission with such a stipulation seems in one ease to have been considered so little of a discontinuance as, on a revocation of the submission by one party, to permit the other party to proceed to trial in the cause. (Ex parte Wright, 6 Cowen, 399.) The defendants were therefore entitled to» enter judgment on the report of the two referees, according to such stipulation, if made according to the terms of the agreement, which .is that the referees should “ render'” their report within a certain time after the introduction of certain documents before them. I should have supposed, hut for the strenuous advocacy of the plaintiffs’ counsel, that to render was never properly applied to an award which is made and published, but was to a report; as being similar to a verdict, and, like it, rendered to the court, not to the par

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ties. There was evidently, however, but one report to be made, as it is declared that judgment shall be entered on it, and that too “in the usual mannerWhether, therefore, an arbitration was in fact created or not, it is evident from the whole instrument that both parties understood the proceeding to be a reference retaining the cause in court, to be proceeded upon in the usual way, after a report made and delivered to the successful party; and the language used by them is to be construed in reference to that view. I think, therefore, there can be no doubt that the words of the stipulation were satisfied by making a report and delivering it to the successful parties, for the purpose of enabling them to enter judgment upon it in the usual way.

The views already expressed equally govern the appeals from the orders made, refusing to set aside the report by the remaining referee, which was, of course, void, or to prevent the plaintiffs from using it. The prior motion to prevent the referee from making an award was, perhaps, premature, and the order, therefore, proper and not appealable.

The objections in this case to entering judgment were highly technical, as it appears from the affidavits of the two referees, and even of one of the plaintiffs, (Healy,) that he had notice of the making of the report and its general character and substance, before the time fixed had expired. They are therefore properly chargeable with costs on their appeal.

The order permitting the defendants to enter judgment upon the report of the two referees must, therefore, be affirmed, with costs,-and that refusing to set aside the report of the single referee must be reversed, with costs, and the appeal from the order refusing to permit such referee to make a. report, must be dismissed, without costs to either party.

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