Macpherson v. Ronner — 40 N.Y. Super. Ct. 448

Majority

p. 448

WILLIAM MACPHERSON, Plaintiff and Respondent, v. WILHELMINA RONNER, Defendant and Appellant.

Headnote

PRACTICE IN AN ACTION BEFORE A REFEREE. '

A motion to set aside the report of a referee should be made before judgment is finally entered, for, if successful, it would prevent the entry of a judgment. It would be useless work to vacate and set aside the report and yet allow the judgment to stand.

In the case at bar, the referee allowed the plaintiff to amend his ' complaint on motion, giving the defendant twenty days to serve an amended answer, to which defendant objected and excepted, and refused to amend his answer, but afterwards went on with the defense on the trial, and after report and judgment thereon, he moved to set aside the report on the ground that the amendment so allowed by the referee was improper.

Held, that this motion was too late.

The defendant could have contested this question by a special motion to the court, at the time, for an order setting aside the amendment. In this way the matter could have been simply and expeditiously disposed of before the trial was concluded, if a motion in such a case was proper, It is too late to raise the question after the trial, report, and entry of judgment, except on appeal from the judgment.

The report having become incorporated with the judgment, can not be detached and considered apart from it. The report and judgment must stand or fall together.

p. 449

Before Sedgwick and Van Vorst, JJ.

Decided February 7, 1876.

Appeal from order of special term.

The complaint in this action alleges that the plaintiff performed certain work, labor, and services for and furnished certain materials to the defendant in the erection and construction of a certain dwelling-house for defendant in the city of New York. The answer, among other things, alleges that the plaintiff made an agreement with the defendant to erect and finish a dwelling house for the defendant for a certain price; that the building was never finished, to the defendant’s damage.

The issues were referred to a referee for trial. During the trial before the referee, the plaintiff asked to amend his complaint by adding after the words “New York” in the complaint the following, “and for work and labor done and materials furnished for and at the request of defendant, in repairing other houses of the defendant, and in building fences upon the defendant’s premises.” The defendant objected to the amendment on the ground “ that it was new matter, that he was taken by surprise, and that the amendment was contrary to the statute.” The objection was overruled and the defendant excepted.

The plaintiff was allowed to amend, the defendant to be served with a bill of particulars, and allowed twenty days within which to serve an answer. The bill of particulars was served, but was returned by defendant, who declined to serve an amended answer.

After the amendment, however, the trial proceeded before the referee, and evidence was given by the defendant, to meet the plaintiff’s proof, in respect to the matters covered by the amendment,

p. 450

The referee reported in favor of the plaintiff, and upon August 3, 1875, ajudgment was entered in favor of the plaintiff, upon the referee’s report, and for the amount thereby awarded plaintiff.

In September following, and after the judgment, a motion was made to set aside the report of the referee, on the ground that the amendment of the complaint was improper.

Mo motion has been made to set aside either the order allowing the amendment or the judgment.

The motion to set aside the referee’s report was denied, and from the order of denial this appeal is taken to the general term.

Mr. Burwell, for appellant.

Mr. Hall, for respondent.

If the order made by the referee during the trial allowing the complaint to be amended was for any sufficient reason objectionable, and the defendant intended to contest it by a special motion, instead of proceeding with the trial, and giving evidence with respect to the subject-matter of the amendment, he should have at once applied to the court at special term for an order setting aside the amendment. There was abundant opportunity for this within the twenty days allowed the defendant to serve the amended answer, before further proceedings could be had before the referee.

In this way the matter could have been simply and expeditiously disposed of if a motion was at all proper.

I should say that it was too late to raise by motion an, objection to the amendment after proceedings on the trial have been had under it, and the referee has reported, and judgment upon the report has been actually entered.

p. 451

By this final step the report has become incorporate with the judgment, and can not be detached and considered apart from it. The report and judgment must stand or fall together. To be effective, a motion simply to set aside the report of a referee should be made before judgment is finally entered ; if successful, it would prevent a judgment. It would be idle to set aside the report and allow the judgment to stand.

The defendant made his objection on the trial, at the time the amendment was asked for, and he excepted to the ruling of the referee on the subject.

He has taken an appeal from the judgment. If any error was made by the referee in allowing the amendment, the case on appeal will disclose it.

The court a‘t general term, when the appeal is heard, will determine whether the amendment was within the power of the referee to order, or if discretionary, whether the discretion was abused. We are of opinion that the defendant having sought a review of the proceedings on the trial by appeal, and which seems tobe the appropriate remedy, should be left to redress in that proceeding, if any be proper.

It is not necessary at this time, with an appeal pending, to express any opinion as to whether or not the amendment should or could have been allowed by the referee.

The order appealed from should be affirmed with costs.

Sedgwick, J., concurred.