Graham v. Wood — 1 Wend. 15

Majority

p. 15

D. & D. Graham vs. Wood.

Headnote

When both parties move for a reference, the motion of the party first giving notice is entitled to a preference.

Motion for reference by both parties. On 20th March a plea was served on the plaintiffs’ attorney by a clerk of the defendant’s attorney, who, before he could have proceeded to the office of his principal, returned and served papers preparatory to a motion for reference. The plaintiffs’ attorney, previous to receiving the plea, had prepared the necessary papers on his part for a .similar motion, and on the plea being served, made affidavit that the cause was at issue, &c. and within ten minutes after receiving the plea, served the papers on the attorney for the defendant. The question was, who should tiave the right of naming two of the referees.

-D, Graham, for plaintiffs.

J. R. Whiling, for defendant.

It is a right common to both parties in causes referrable, to make application for a reference. By the practice of the court, the party making the motion nominates the three referees to whom it is proposed to refer the cause; the opposite party has the right to strike out the name of one of the persons proposed, and to substitute another in his stead, leaving two originally named, who will be appointed by the court, unless cause is shewn to the contrary. The question submitted is, which of the parlies shall have the naming of the two referees 1 The court do not perceive that they can be guided by a better rule than that of giving preference to the most vigilant; the defendant’s papers having been first served, his motion is granted.