Devoe v. Nutter

Headnote

Practice — mistalce as to order—relief against — new trial.

In an action to recover an alleged interest in suits prosecuted by defendant, and for an accounting, the referee decided in favor of plaintiff, and directed judgment for a certain amount named. Upon a motion to set aside the report, it was claimed that defendant had acted under a misapprehension that the referee had made an order that the issues should be first tried and decided, and if adverse to defendant, an accounting would be taken, and that defendant had a set-off. in part, to plaintiff’s claim, which he had had no opportunity to establish. Held, that defendant having misapprehended the order made by the referee, and having been deprived of his right to contest the amount of the recovery, the report should be vacated so far as it related to that question, and the referee ordered to try and determine the same.

Appeal from an order of the special term denying motion to set aside report of referee. The action was brought by Isaac Devoe against David R Nutter. Another action was brought by plaintiff against defendant, in the court of common pleas. The actions were to recover an interest in suits brought by defendant, as attorney, for several parties against the collector of the port of New York, for erroneous assessment of duties; plaintiff’s interest being part of defendant’s'fees for his services. Both actions were referred to the same referee, who made an order that in the common pleas action the issues should be first tried and decided, and if adverse to defendant, an accounting should be had. Defendant understood and claimed that this order applied also to the supreme court action. The actions were tried simultaneously, the principal question and the evidence thereon being the same.