Egbert v. O'Connor

Headnote

Bight of appeal—waiver of.—Order of reference.

The defendant appealed from an order referring the issues in the action for trial, and thereafter applied for leave to serve an amended answer, which was granted upon condition that the order of reference stand, and that the issues made by the amended answer be tried thereunder. Thereupon defendant duly entered an order in compliance with said conditions, served an amended answer, and proceeded with the reference. Held, that he thereby waived his right of appeal from the order of reference.

Motion to dismiss appeal.

The action was brought by plaintiff on contract to recover for services, disbursements, &c., as an attorney and counselor. The answer set up a general denial and counter-claiip. The reply denied the counterclaim. On plaintiff’s motion, in which it appears that the trial would involve the examination of a long account, the plaintiff’s bill of items, containing upwards of sixty items, and the defendant’s eight items, the court at special term granted an order referring the issues to Hon. James M. Smith, to hear, try and determine, which order was entered October 25, 1879. On the same day defendant appealed to the general term from said order. On November 13, 1879, the defendant moved, at special term, for leave to serve an amended answer, and on such motion entered an order allowing defendant to serve an amended answer upon the condition, among others, “ that the order of reference entered in said action at a special term of this court, on October 25,1879, referring the same to James

M. Smith to hear and determine, be allowed to stand, and that the issues raised by said amended answer, or by any reply thereto, be tried and determined by the said referee.” On November 17, 1879, served an amended answer, to which amended answer plaintiff served a reply, November 19, 1879. Upon the issues made by the amended pleadings, the defendant has voluntarily proceeded to trial before the referee.