Quinn v. Lloyd — 30 N.Y. Super. Ct. 157

Majority

p. 157

Quinn, adm’r, &c. plaintiff vs. Lloyd, defendant.

Headnote

An irregularity in the appointment of a referee will he waived by the appearance of a party before him and proceeding with the reference, for several days, without making any objection.

(Before Barbour, J. at special term,

November —, 1867.)

Motion for the removal of a referee.

This was a motion on the part of the defendant for the removal of the referee in this action, upon the ground that he was irregularly appointed.

After issue joined, the attorneys for the parties respectively entered into a stipulation, which provided that the action be referred to a referee, named in such stipulation,

p. 158

to hear and determine. Such stipulation was taken by the plaintiff’s attorney- and an application made by him, ex parte, thereupon, for an order, in accordance with its provisions; the court, on such ex parte application, and without the consent of the attorney of the defendant, granted an order referring the cause, not to the referee so agreed upon, but' to another person; the defendant’s attorney, haying notice of such order of reference, attended before the referee named • therein, and proceeded with such reference without any objection on his part, for several days. He now moved that the order of reference be set aside for irregularity.

The acquiescence of the attorney of the defendant in the order, as exhibited by the proceedings before the referee,for several days, without objection on the defendant’s part, must be held to constitute a waiver of the irregularity.

The motion is denied, with $10 costs.