Degener v. Underwood — 61 N.Y. Super. Ct. 451

Majority

p. 451

FREDERICK L. DEGENER, Respondent v. JOHN T. UNDERWOOD, et al., Appellants.

Headnote

Trial before referee—Effect of order of reference entered before-service of amended answer and notice of trial—Waiver of objection by going on with trial instead of moving to vacate proceedings.

After the issues herein were referred to a referee, the defendants served an amended answer to which plaintiff served a reply. No notice of trial was served after issue joined on the amended answer. The defendants objected to proceeding before the referee at the opening of the trial, on the ground that the issues to be tried were not made until a date subsequent to the order of reference. The referee proceeded with the trial and rendered a report in the plaintiff’s favor. Held, that defendants were debarred from raising this question by their own laches in not seeking relief by motion to vacate the order of reference and proceedings held before the referee, prior to the presentation of their defence.

Before Freedman, P. J., Dugro and Gildersleeve, JJ.

Decided December 5, 1892.

Appeal by defendants from a judgment entered upon the report of a referee in plaintiff’s favor. The action was brought to recover a certain balance alleged to be due plaintiff for services and materials furnished in the construction of a machine for malting manifolding paper. Further facts appear in the head-note.

James A. Hudson, for appellants.

J. E. Ludden, for respondent.

There is authority for a appears and makes a defence, a new trial will not be granted because of a failure to give notice of trial (Yonge v. Fisher, 2

p. 452

Dowl. N. S., 637 ; Doe D’Antrobus v. Jepson, 3 B. & A. D., 402; Thermolin v. Cole, 2 Salk., 646; see 3 Wait’s Pr., 31 and 397; Rumsey’s Pr., vol. 2, page 405); but regardless of this, it is quite certain that the appellants should be held to be debarred from now raising any question as to the service of a notice of trial, because of them laches in not seeking relief by motion to vacate the proceedings had before the referee prior to the presentation of their defence.

By the order of July 9, the clerk was directed to enter judgment as of the 9th day of April, 1891. The judgment thus to be entered was for the sum found by the referee, with interest thereon from April 2 to April 9, and the costs and disbursements, in all $40.53, less than the amount of the judgment entered by the clerk. The entry of the judgment should be corrected accordingly. A careful examination of the case discloses no error requiring a reversal. The judgment, entered as ordered, to be corrected, is affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concurred.