(Jnrnrll Haui ^d^nnl ICibrary Cornell University Library KFN6049.B78 The law and practice relating to referee 3 1924 022 785 301 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022785301 THE LAW AND PRACTICE RELATING TO REFEREES, REFERENCES AND ARBITRATIONS THE LAW AND PRACTICE AS TO REFERENCES AND THE POWERS AND DUTIES OF REFEREES UNDER THE CODE OF CIVIL PROCEDURE AND STAT- UTES OF THE STATE OF NEW YORK ALSO THE LAW AND PRACTICE AS TO ARBITRATIONS AND THE POWERS AND DUTIES OF ARBITRATORS UNDER THE CODE WITH FORMS By L. L. BQYCE, or THS ALBANY BAR, EDITOR OF HEALTH OFFICER'S MANUAL AND SECOND EDITION OF CREENR ON HIGHWAYS. ALBANY, N. Y. MATTHEW BENDER 1903 "3 '7^30^ Copyright, 1903, By MATTHEW BENDER, J, D. LVON COMPANY PRINTERS AND BINDERS ALBANY, N, Y. PREFACE. Fifteen years have elapsed since the publication of a work on Referees and References. During that time numerous cases have been passed upon by the courts, involv- ing vital questions relating to the power of courts to make compulsory references in certain classes of cases, even when long accounts are involved. The decisions in these cases and the recent amendments of the statute, by which " short form " decisions are abolished and the method of review- ing referees' decisions changed, render a new work on the subject at this time necessary. This work is intended to cover every subject under the Code and the various statutes. It is designed as a " Ready Reference," and " Complete Digest " of the law on the subject, and for each proposition stated, authorities are cited in support of it. The kindred subject of Arbitration is also given place in the work, and the same care has been given to that branch of the work as to the former. When, in the view of the writer, a subject of import- ance was met, liberal quotations from opinions, stating the precise point involved, are given in foot-notes, thus saving the necessity of consulting reports, sometimes in- accessible. A complete and carefully prepared set of Forms are given as an appendix. L. L. BOYCE. Albany, N. Y., July i, 1903. (iii) CONTENTS. TITLE I. References to Hear and Determine. Chapter I. Introduction. (§ i.) II. Referees and References. (§§ 2-4.) III. References of Issues by Consent. (§§ 5-12.) IV. Compulsory References. (§§ 13-21.) V. Application for Compulsory Reference. (§§ 22-28.) VI. Bringing Issues to Trial Before Referee. (§§ 29-36.) VII. The Trial. (§§ 37-43.) VIII. Submission of the Case and Proceedings Before Report. (§§ 44-48.) IX. The Referee's Report. (§§ 49-56.) X. The Judgment and Appeal Therefrom. (§§ 57-64.) XI. Contempt. (§§ 65-69.) CHAPTER I. Introduction. page. Section i. Introduction i CHAPTER II. Referees and References 8 Section 2. Definitions 8 3. How created 9 4. Advantages of a reference 10 CHAPTER III. References of Issues by Consent 13 Section 5. Under the common law 13 6. Under the statute 13 7. The referee 14 8. The consent 17 9. Implied consent 18 10. The order of reference 19 11. Appointing new referee 20 12. Removal of referee by the court 20 [v] VI CONTENTS. CHAPTER IV. PAQB. Compulsory References ^^ Section 13. The statute and its meaning 22 14. When cause referable ^3 15. When cause not referable ^4 16. Actions for wrongs, not referable ^5 17. Referability, how determined ^7 18. What is a long account 29 19. Attorney's account for services 32 20. Account must be directly involved 34 21. When difficult questions of law are involved 35 CHAPTER V. Application for Compulsory Reference 37 Section 22. Application for reference, how. made 37 23. Application for reference, .when made 37 24. The moving papers , 38 25. Application, how opposed 40 26. The referee 41 27. The order of reference 43 28. Order, how reviewed 43 CHAPTER VI. BRINGING Issues to Trial before Referee 46 Section 29. Appointrnent of time and place of hearing 46 30. Notice of trial 47 31. Referee's oath 48 32. Fees of referee 49 33. Adjournments of the hearing 51 34. Procuring the attendance of witnesses 52 35. Presence of the referee 54 36. Judgment on default or on pleadings 55 CHAPTER VII. The Trial 57 Section 37. Conduct of the trial 57 38. Swearing the witnesses 61 39. Receiving the evidence 62 40. Determining weight of testimony 65 41. Submitting to nonsuit 66 42. Amendments 67 43. Motions at close of testimony 70 CONTENTS. VU CHAPTER VIII. PAGE. Submission of the Case and Proceedings before Report 72 Section 44. How case submitted ^2 45. Death of party or transfer of interest TZ 46. Death of referee 76 47. Discussion of the case with one of the parties, and other improprieties ^^ 48. Terminating the reference for failure to file or dehver report 80 CHAPTER IX. The Referee's Report 84 Section 49. The report; in general 84 50. Form and contents ; generally 86 51. Form and contents; must state separately facts found and conclusions of law 89 52. Form and contents; directing judgment and awarding costs 91 53. Form and contents; not to authorize increased costs. . 93 54. Report of referee on demurrer 94 55. Filing and delivering report 95 56. When judicial functions cease 96 CHAPTER X. TpE Judgment and Appeal Therefrom 98 Section 57. Entry of judgment and notice thereof 98 58. Filing and serving exceptions 100 59. Making and serving proposed case and exceptions .... 103 60. Proposed case; its form and contents 106 61. Making and serving amendments to proposed case, and notice of settlement 108 62. Settlement and signing of case no 63. Resettlement of case nS 64. The appeal 115 CHAPTER XI. Contempt 117 Section 65. A referee may be punished for contempt 117 66. Power of referee to punish for contempt 117 67. Proceedings to punish for contempt 118 68. What acts may be punished 124 69. The punishment 125 Vni CONTENTS. TITLE II. Interlocutory References. Chapter I. General Provisions. (§§ 70-76.) II. Interlocutory References in Particular Cases. (I§ 77-84.) CHAPTER I. PAGE. General Provisions 131 Section 70. Definitions and statutory provisions 131 71. When interlocutory reference ordered 134 72. The order of reference and the hearing 135 73. Taking and filing the testimony I39 74. The report and exceptions 140 75. Hearing exceptions and confirmation of the report. .. . 142 76. Review of order of confirmation I43 CHAPTER II. Interlocutory References in Particular Cases 14S Section 77. How far compulsory 14S 78. Reference to take and state an account 146 79. References for information of the court 149 80. References of questions of fact arising on motion 150 81. References to take depositions to be used on motion. . 153 82. References to examine a party or witness before trial. . 156 83. References to take proof on application for judgment by default 161 84. References to ascertain damages sustained by an in- junction 162 TITLE III. References in Particular Actions. Chapter I. References in Actions to Foreclose Mortgages upon Real Estate. (§§ 85-96.) II. References in Partition. (§§ 97-99.) III. References in Actions for Dower. (§§ 100-106.) IV. References in Matrimonial Actions. (§§ 107-113.) V. References of Claims against Estates of Decedents, (§§ 114-116.) CHAPTER I. References in Actions to Foreclose Mortgages upon Real Estate. 165 Subdivision I. References of the Issues or Parts of Issues Including Inter- locutory Matters 165 Section 85. References of the issues, etc 165 CONTENTS. IX Subdivision II. pagb. References to Compute Amount Due and Take Proof ok Allega- tions OF Complaint i66 Section 86. When ordered; statute and rules i66 87. The hearing and the report 170 88. Confirmation of the report and judgment thereon.... 172 Subdivision III. References to Sell i74 Section 89. General powers and duties of the referee 174 90. Advertising and conducting the sale 176 91. Referee's report of sale and confirmation 183 92. Referee's fees on sale 184 Subdivision IV. References as to Surplus Moneys 186 Section 93. Provisions of the statute and rules 186 94. The hearing and what may be shown thereon 190 95. The report 191 96. Referee's fees and costs 192 CHAPTER II. References in Partition ■. 193 Section 97. References of the issues 193 98. References on default 194 99. References to sell in actions for partition 198 CHAPTER III. References in Actions for Dower 201 Section 100. References of the issues 201 loi. Interlocutory judgment; its form 201 102. Oath of referee 202 103. Mode of procedure 202 104. The report 205 105. Recovery of damages in dower 206 106. Other references in actions for dower 208 CHAPTER IV. References in Matrimonial Actions 210 Section 107. General provisions 210 108. References of issues in actions for divorce 211 109. What may be shown on the hearing 214 no. The report, judgment, and review 215 111. References as to alimony and counsel fees 217 112. References in actions for separation 219 113. References in actions to annul a marriage 221 CONTENTS. CHAPTER V. PAGE. References of Claims against Estates of Decedents 223 Section 114. The statute 223 115. The hearing and proceedings 226 116. The report and judgment 228 TITLE IV. References in Special Proceedings. Chapter I. References in Surrogates' Courts. (§§ 117-120.) II. References in Supplementary Proceedings. (§§ 121-122.) III. References for Examination of Garnishee in Attach- ment. (§§ 123-125.) IV. References under the General Assignment Law. (§§ 126-130.) V. References of Controversies under Insolvent Debtors' Law, (§§ 131-132.) VI. References in Proceedings to Discover Life Tenant. (§§133-136.) VII. References in Proceedings for Collection of Taxes. (§§ 137-138.) VIII. References on Sale or Mortgage of Real Estate of Infant, Lunatic, Idiot, or Habitual Drunkard. (§§ 139-141-) IX. References in Proceedings for Voluntary Dissolution of Corporations. (§§ 142-145.) X. Miscellaneous References. (§§ 146-150.) CHAPTER I. References in Surrogates' Courts 229 Section i 17. The statute 229 118. The referee and the proceedings 231 119. The referee's report 234 120. References for probate or revocation of probate of will in New York county 236 CHAPTER II. Supplementary Proceedings 238 Section 121. Statutory provisions 238 122. Proceedings before the referee 240 CHAPTER III. References for Examination of Garnishee in Attachment 243 Section 123. The statute ; its effect 243 124. The order of reference 244 125. The examination 245 CONTENTS. XI CHAPTER IV. FAOB. feilfEJiENCES UNDEt! THE GENERAL ASSIGNMENT LXW 247 SECTiON 126. Irttroductory ^ 247 127. References for examination of witnesses, books and papers in aid of the assigtlmeht 247 128. References to try and determine disputed cl'ailhs... 249 129. References to take and state the accdunt of the assignee 250 130. Referee's f^eS 251 CHAPTER V. References of Controversies under Insolvent Debtors Law 253 Section 131. When reference may be ordered 253 132. Powers arid duties of referees 255 CHAPTER VI. References li* Proceedings to t)iscbvER Life Tenant 25S Section 133. When proceedings may be maihtaitted 258 134. The petition and proceedings thereon 258 135. The reference and proceedings thereon 260 136. The filial order 261 CHAPTER VII. References in Proceedings for Collection of Taxes 262 Section 137. Sii^p'^rnehtary proceedings against nonresidents 262 138. Supplementary proceedings to collect tax 263 CHAPTER VIII. References on Sale or Mortgage of Real Estate of Infant Lunatic, Idiot, or Habitual Drunkard 265 Section 139. Proceedings, how instituted 265 140. The proof and referee's report 266 141. Confirmation of report 267 CHAPTER IX. References in Proceedings for Voluntary Dissolution of Cor- porations 269 Section 142. How proceedings may be instituted 269 143. Presentation of petition, and order of reference 270 144. The hearing and the report 271 145. Application for final order 271 Xll CONTENTS. CHAPTER X. PAOB. Miscellaneous References ^73 Section 146. References in proceeding to compel an attorney to pay over money, etc ^73 147. Reference of controversy by receiver of corporation.. 273 148. Reference in proceedings for sale of corporate real estate 275 149. References for other purposes under the Code 275 150. References under various statutes 278 TITLE V. The Law as to Arbitrations and the Powers and Duties of Arbitrators. Chapter I. Arbitrations Generally. (§§ 151-1S7) II. Powers and Duties of Arbitrators, and Procedure. (§§ 158-162.) III. Motion to Confirm, Vacate, Modify, or Correct Award. (§§ 163-166.) IV. The Judgment and Review Thereof. (§§ 167-169.) V. Revocation of Award and Death of Party. (§§ 170-172.) CHAPTER I. Arbitrations Generally 281 Section 151. Introductory; definitions and history 281 152. What may be submitted to arbitration, and how 283 153. The submission to arbitration and its effect 286 154. Who may make the submission 287 155. The effect of arbitration on actions pending 289 156. Umpire or additional arbitrator 291 157. Provisions of the statute, how far applicable 292 CHAPTER II. Powers and Duties of Arbitrators, and Procedure 295 Section 158. Time for hearing; notice; adjournment, etc 295 159. Oath of arbitrators and attendance of witnesses 296 160. The hearing 298 161. The award, and how authenticated 299 162. Effect of an award 301 CHAPTER III. Motion to Confirm, Vacate, Modify, or Correct Award 303 Section 163. Motion to confirm award 303 164. Motion to vacate award 303 165. Motion to modify or correct award 307 166. When motion to be made; costs 308 CONTENTS. XUl CHAPTER IV. PAQB. The Judgment and Review Thereof 310 Section 167. Judgment on the award, costs 310 168. Effect of judgment and its enforcement 311 169. Judgment, how reviewed 311 CHAPTER V. Revocation of Award and Death of Party 313 Section 170. When and how revocation allowed 313 171. Liabihty of party who revokes 314 172. Effect of death of a party 315 TITLE VI. Referees' and Arbitrators' Fees 317 Section 173. Fees in references generally 317 174. Fees on sales of real property 320 17s. Fees of arbitrators 323 176. Schedule of referee's fees 324 177. Referee's fees on sales of real property — In foreclosure. 325 Forms 329-414 Index to Forms 415 General Index 423 THE Law and Practice as to References AND THE POWERS AND DUTIES OF REFEREES. TITLE I. REFERENCES TO HEAR AND DETERMINE. Chapter I. Introduction (§ i). II. Referees and References (§§ 2-4). III. References of Issues by Consent (§§ 5-12). IV. Compulsory References (§§ 13-21). V. Application for Compulsory Reference (§§ 22-28). VI. Bringing Issues to Trial Before Referee (§§ 29-36). VII. The Trial (§§ 37-43). VIII. Submission of the Case and Proceedings Before Report (§§ 44-48). IX. The Referee's Report (§§ 49-56). X. The Judgment and Appeal Therefrom (§§ 57-64). XL Contempt (§§ 65-69). CHAPTER I. INTRODUCTION. Section I. Introduction. § I. Introduction — In New York, as early as the admin- istration of Peter Stuyvesant as governor of the colony un- der the Dutch, commencing in 1647, references of causes at issue in the courts were frequent. Most generally, the mat- ter was disposed of upon the first hearing before the magis- trate or judge, without resorting to the oath or the examina- tion of witnesses. If, however, the case was intricate or it 2 LAW AND PRACTICE AS TO REFERENCES. was difficult to get at the truth, it was the constant practice to refer the cause to arbitrators; and this was not confined merely to cases of disputes about accounts, or to differences growing out of contracts, but it extended to nearly every kind of case that came before the court. The arbitrators were left to the choice of the litigants, or were appointed by the court. These references were frequent upon every court day; and it is worthy of remark, that though the amount in- volved was frequently considerable, or the matter in dispute highly important, appeals to the court from the decision of the arbitrators were exceedingly rare. These most beneficial features of the Dutch Court, of referring causes to arbitrators, continued for many years after the conquest of the colony by the English and was practiced very generally, until Eng- lish lawyers began to increase in the colony, when the sys- tem of special pleading grew more refined and subtle, and arbitrations were no longer resorted to, except in cases of accounts, which were usually referred to three persons, at first styled arbitrators and afterward referees.' This continued until the passage of the so-called Charter of Liberties and Privileges of 1683, which, so far as relating to the subject under discussion, is as follows: " THE CHARTER of Libertyes and priviledges granted by his Royall Highnesse to the Inhabitants of New Yorke and its Dependencyes. [Passed, October 30, 1683.J ffOR The better Establishing the Government of this province of New Yorke and that Justice and Right may be Equally done to all persons within the same 1. Introduction to i E. D. Smith's Rep., pp. xxix and xliv; Magown V. Sinclair, 5 Daly, 63-67. INTRODUCTION. 3 BEE It Enacted by the Governour Councell and Rep- resentatives now in Generall Assembly mett and assembled and by the authority of the same H* ^P 'P ^ ^ ?P JfC *p 't* ALL Tryalls shall be by the verdict of twelve men, and as neer as may be peers or Equalls And of the neighbour- hood and in the County Shire or Division where the fact Shall arise or grow Whether the Same be by Indictment Infermacon Declaracon or otherwise against the Offender or Defendant.'' This provision as incorporated in the law of the colony virtually abolished the procedure by reference, and there was no way by which a matter involving an account could be tried at common law, except by an action of account. But the action of account was intricate in its course of pro- cedure, dilatory, expensive, and besides, did not reach all cases of account. Neither could the course of procedure in it be adapted to a trial by jury, which was obligatory in the colony by the Charter of Liberties and Privileges, be- cause in the action of account there were two judgments: Urst, that the defendant account, or as it was called, quod computet, upon which the court assigned two auditors, usually officers of the court, who examined the parties under oath respecting the account, a practice which did not exist in other common-law actions, and there might also be a new pleading before the auditors of matter in discharge of the defendant's liability, which, if the plaintiff desired, a new issue was created, which the auditors certified to the court, by whom a venire was awarded to try it, and if that issue was found for the plaintiff, or if, by the examination before the auditors, any amount was found to be due from the de- 2. The Colonial Laws of New York, Vol. i, p. in. 4 LAW AND PRACTICE AS TO REFERENCES. fendant, there was a second judgment, that he pay to the plaintiff the sum found by the auditors to be due. Such a procedure as this was found to be wholly inapplicable to the trial of the issues of fact joined in an action by a jury, and as the remedy in equity was then but imperfectly understood in the colony, the action of assumpsit was resorted to as a necessity, and matters of account appear to have been tried in that form, before a jury, down to 1768, when the investi- gation of accounts before juries proved so inconvenient and unsatisfactory that a statute was passed in that year estab- lishing our present mode of trial before referees.^ The title of the act referred to, viz. : "An ACT for the bet- ter Determination of personal Actions depending upon Ac- counts " (Pass'd the 31st December, 1768), expresses the purpose of the statute, but the preamble of the statute, show- ing clearly the nature of the mischief of the former practice and the remedy that was intended to be applied, is in the lan- guage following: " Whereas, instead of the ancient Action of Account, Suits are of late for the Sake of holding to Bail, and to avoid the Wager of Law, frequently brought in Assumpsit, whereby the Business of unravelling long and intricate Accounts, most proper for the DeUberate Examina- tion of Auditors, is now cast upon Jurors, who, at the bar, are more disadvantageously circumstanced for such services; and this Burden upon Jurors is greatly increased, since the Law made for permitting Discounts in Support of a Plea of Payment; so that by the Change of the Law, and Practice above-mentioned, the Suits of Merchants and others, upon long Accounts, are exposed to erroneous Decisions, and Jurors perplexed and rendered more liable to Attaints, and by the vast Time necessarily consumed in such Trials, other 3. Magown v. Sinclair, 5 Daly, 63, 69. INTRODUCTION. 5 Causes are delayed, and the general Course of Justice is greatly obstructed." The statute then provided " that whenever it shall appear probable in any Cause depending in the Supreme Court of Judicature of this Colony (other than Such as shall be brought by or against Executors or Administrators) that the Trial of the same will require the Examination of a long Account, either on one side or the other, the said Court is hereby authorized, with or without the Consent of Parties, to refer such Cause by Rule, to be made at Discretion, to Referees " to be chosen as in the act provided for. Such referees were to report " upon Pain of Contempt " and upon confirmation of their report judg- ment was entered.* This provision of the statute was a direct return to the old Dutch practice. This act expired by limitation January i, 1771, but "the same having been found very useful and necessary," was revived on February 16, 1 77 1, and continued " until the first Day of February, which will be in the Year of our Lord, One thousand seven hundred and eighty." ^ In 1772, the provisions of the act were extended to the inferior courts of Common Pleas and the Mayor's Courts of the cities of New York and Albany.* Thus at the time of the adoption of the Constitution of 1777, references were permissible in all common-law actions of account and "the suits of merchants and others, upon long accounts," except in actions where executors and adminis- trators were parties. The Colonial Act of 1 768-1 771, above referred to, became the law of this state by the 35th section of the Constitution of 1777, but expired by its own limita- tion, February i, 1780. From that time until 1788, there 4. Van Schaack's Laws, Vol. 2, 6. Van Schaack's Laws, Vol. 2, p. 517- P- 642. 5. Van Schaack's Laws, Vol. 2, p. 607. 6 LAW AND PRACTICE AS TO REFERENCES. was no law in this state authorizing references. In 1788, the legislature passed a law on the subject; the second sec- tion of the act of February 27, 1788/ being a virtual re- enactment of the Colonial Act above referred to, with the addition of conferring power of reference by " any court of record " and in causes where executors and administrators were parties. Next in order of time came the Act of March 30, 1801, the second section of which was a substantial re-enactment of the second section of the Act of 1788.* Then followed the Act of April 5, 1813,^ the second section of which was a verbal re-enactment of the law of 1801. The Act of 181 3 was succeeded by the provisions of the Revised Statutes,'" which were amended by the act passed May 9, 1845." The Code of Procedure of 1848" contained substantially the provisions of former statutes, and by the amendment of 1849'^ exception was made in cases " where the investigation will require the decision of difficult questions of law." '^ The provisions of the Code of Procedure above referred to be- came and still remain the provisions of the Code of Civil Procedure, as enacted in 1877.'* It will be noted, upon examination of the several statutes, that none of them are 7. Jones and Varick's Laws of 14. Code of Civil Proc, § 1013, New York, Vol. 2, p. 269; Green- as follows: "The court may, of its leaf's Laws of New York, Vol. 2, own motion, or on the application p. 103. of either party, without the consent 8. Kent and RadclifT's Laws of of the other, direct a trial of the New York, Vol. i, p. 346; Webster issues of fact, by a referee, where and Skinner's Laws of New York, the trial will require the examina- Vol. I, p. 347. tion of a long account, on either 9. I R. L. 515. side, and will not require the de- 10. 2 R. S. (ist ed.) 384. cision of difficult questions of law. 11. L. 1845, ch. 163. In an action, triable by the court, 12. § 226. without a jury, a reference may be 13. Code of Procedure, § 271, as made, as prescribed in this section, amended 1849. to decide the whole issue, or any of INTRODUCTION. 7 mandatory, but always a matter of discretion with the court. '5 The right of trial by jury is preserved by the Con- stitution only as it existed in 1777, and a compulsory refer- ence may be ordered now in like cases where it could have been ordered then/^ viz.: In cases where the trial will nec- essarily require the examination of a long account, except in actions in which executors and administrators are par- ties.''' the issues; or to report the refer- 16. Townsend v. Hendricks, 40 ee's finding, upon one or more spe- How. 143; Cameron v. Freeman, 18 cific questions of fact, involved in How. 310; Place v. Cheeseborough, the issues." 4 Hun, 577. 15. Day v. Martin, 49 N. Y. 17. Malone v. Saints Peter and Super. 373; Martin v. Windsor Paul's Church, 69 App. Div. 420; Hotel Co., 70 N. Y. loi ; Goodyear 108 St. Repr. (74 N. Y. Supp.) V. Brooks, 27 N. Y. Super. 682; 1005; appeal dismissed, 172 N. Y. Harris v. Aktiebolaget Separator, 269. 21 St. Repr, 104; 4 N. Y. Supp. 126. LAW AND PRACTICE AS TO REFERENCES. CHAPTER 11. REFEREES AND REFERENCES. Section 2. Definitions. 3. How created. 4. Advantages of a reference. § 2. Definitions — A referee is (i) a person to whom an issue or question arising in a cause has been specially sent for trial or examination;' (2) the person to whom is sent, for examination and report, a question or issue raised in a pending suit;^ (3) a person to whom a cause pending in a court is referred by the court, to take testimony, hear the parties, and report thereon to the court ;3 (4) a person to whom has been referred a matter in dispute, in order that he may settle it;"* (5) a person especially selected to try a cause in place of a court and jury; or to examine a question or issue raised in a pending suit and report thereon to the court. 5 A referee is distinguished from an arbitrator in that the latter is employed where no lawsuit has been brought, while the former decides issues or questions arising in an actual suit.^ A reference is (i) sending an issue or question to be tried or examined by a selected person instead of by a judge or jury;' (2) the act, order, or paper by which a matter is com- mitted to one or more persons for investigation and report;® (3) the act of sending a cause pending in court to a referee for his examination and decision;' (4) an agreement to sub- 1. Abb. Law Diet, Vol. 2, p. 394. 5. Am. & Eng. Encyc. of Law 2. Anderson's Law Diet. 866. (ist ed.), Vol. 20, p. 660. 3. Black's Law Diet. loio. 6. Abb. Law Diet., Vol. 2, p. 394. 4. Bouv. Law Diet, (isth ed.), 7. Abb. Law Diet., Vol. 2, p. 394. Vol. 2, p. 526. 8. Anderson's Law Diet. 866. 9. Black's Law Diet. loio. HOW REFERENCES CREATED. 9 mit to certain arbitrators (referees) matters in dispute be- tween two or more parties, for their decision and judg- ment;'" (5) the act of sending any matter, by a court of chan- cery, or one exercising equitable powers, to a master or other officer, in order that he may ascertain the facts and report to the court." In actions at law, a reference, properly made, is a substitute for a trial by jury; and the report of a referee is regarded in the same light as the verdict of a jury.'^ The term " reference " is usually applied to the pro- ceeding pending before a referee. In the modern practice of the common-law courts, the sys- tem of references has been gradually but widely brought into use; and when a cause or action involves matters of account, or other intricate details, which require minute examination, and for that reason are not fit to be brought before a jury, it is not unusual to refer these to the decision of one or more disinterested and qualified individuals, who may investigate them and report to the court. '^ The origin, history, and growth of the system in this state are fully set forth in the introductory chapter of this work. § 3. How created. — Referees are creatures of the statute. They are judicial officers, charged with a responsible trust. They become by appointment an independent tribunal, hav- ing such powers as are given by the statute; they may take the place of the jury as well as of the court; their decisions are reviewed on appeal from their judgments, and their find- ings upon the facts are generally accepted as conclusive."* 10. Bouv. Law Diet. (15th ed.), 13. Abb. Law Diet. 395; Am. & Vol. 2, p. 526. Eng. Encyc. of Law (ist ed.), Vol, 11. Bouv. Law Diet. (15th ed.), 20, p. 662. Vol. 2, p. 526. 14. Woodruff v. Diekie, 31 How. 12. Alexander v. Fink, 12 Johns. 169; Goldberger v. Manhattan Ry. 219; Beebe v. Bull, 12 Wend. 507; Co., 3 Misc. 441. "A referee is the Crouch V. Gridley, 6 Hill, 250. creature of the statute; he is born 30 LAW AND PRACTICE AS TO REFERENCES. The Code of Civil Procedure confers upon the referee com- plete jurisdiction over the cause and clothes him with all the powers of a judge of the court on the hearing and de- termination of cases referred to him, and a judgment in common transactions follows, upon his report, without any motion to the court, in the same manner as upon the de- cision of the judge.'s Under the Code, a referee may be ■appointed for the mere purpose of taking and returning testimony,'" for taking and stating accounts,"" for ascertain- ing and reporting facts,'^ for hearing and determining all the issues of an action," and for many other purposes. § 4. Advantages of a reference In some cases the court lias power to order a reference even without the consent and against the wishes of the litigants. But in the majority of cases the parties have the right to try the cause before the court and jury; or they may consent to refer all the issues, whether the action be a legal or an equitable one."^" A sys- tem which permits such a general reference of every action and of all questions therein has advantages well worthy of consideration of parties and of practitioners. Some of the advantages of a reference are, that the hearing is not limited to some particular time and place, like a trial term of an order; without it, he is not — — ^a court had to ratify and con- and even with one, the court can firm. Now the judgment of a ref- control, limit, and set him aside, eree may, per se, become the ad- And, yet, unnamed by governor or judgment of the court." (Preface legislature, an individual can, by the to Edwards on Referees [i860].) force of this mere accidental order, 15. Klein v. Continental Ins. Co., have all the important attributes of 62 Hun, 342; Palmer v. Palmer, 13 a judge. Hundreds of solemn is- How. 365. sues of law and of fact are tried 16. Code of Civ. Proc. § 1015. before and decided by mere at- 17. Code of Civ. Proc, § 1015. torneys, when called referees. Ref- 18. Code of Civ. Proc, § 1015. erees were known before the Code; 19. Code of Civ. Proc, § 1013. but their acts were not perfect 20. Code of Civ. Proc, §§ loio, without the intervention of a court 1013. ADVANTAGES OF A REFERENCE. II of the court, and, therefore, the court may be considered open at all times; the place of trial may be fixed with refer- ence to the convenience of parties and witnesses, thus saving time and expense; the parties may choose a referee mutually satisfactory, which is not always the result in selecting a jury as they are ordinarily drawn and impaneled; the labors of counsel are greatly reduced when but a single cause is on trial, instead of having the charge of several important causes to be disposed of in the hurry and press of business, thus securing a full and careful trial of the issues; the selection of a referee who is skilled in some particular subject is some- times important, and it may be secured in this mode of trial; the evidence is taken in writing by the referee, so that it may all be recollected and duly examined and considered; the summing up of the cause may be carefully done by means of a full, previous preparation, and ample time for presenting arguments, which cannot always be done at other trials; the referee may take notes of all arguments, and of all authorities cited, and may thus take time to give both a full examination before deciding the cause; and the report may be so framed as to provide for every interest of every party to the action. A reference avoids the delays and expenses of attending several trial terms before a cause can be regularly reached and tried; it avoids the incon- veniences and risks of the absence of a material witness who may be most important and yet absent when the cause is called, thus losing his evidence or postponing the cause at great expense; it enables a party to supply unexpected de- fects in proof, or to meet evidence which operates as a sur- prise; it enables a party to secure the attendance of such counsel as the party prefers, by trying the cause at such time as they can attend; it is a safe mode for a party hav- 12 LAW AND PRACTICE AS TO REFERENCES. ing a good cause of action, or a valid defense, for this mode of trial will secure a full hearing of evidence or of arguments; the referee possesses all the general powers which will enable him to dispose of the case as carefully and sufficiently as a trial before the court, and upon the whole finding and re- port there may be a full review of all his decisions during the progress of the trial before him.^' Against all this are the delays resulting from numerous and ofttimes unnecessary postponements, when the number and time between them might be less; the large expense, owing usually to the amount of fees paid to a referee, and for unnecessary hear- ings, at many of which little or nothing is done, except to adjourn, and the advantage of a free discussion by a fair, intelligent jury is not secured. "^^ 21. 3 Wait's Practice, 239. 22. 3 Wait's Practice, 240. REFERENCES BY CONSENT. I 3 CHAPTER III. REFERENCES OF ISSUES BY CONSENT. Section 5. Under the common law. 6. Under the statute. 7. The referee. 8. The consent. 9. Implied consent. 10. The order of reference. 11. Appointing new referee. 12. Removal of referee by the court. § 5. Under the common law.— The practice of referring pending actions under a rule of court, by consent of parties, was well known at common law, and such references of is- sues in actions other than those involving long accounts were of frequent occurrence and were recognized and ap- proved by the courts; and the reports of the referees ap- pointed, when regularly made to the court, pursuant to the rule of reference, were regarded as a proper foundation of judgment.' A consent to a reference was deemed a waiver of the con- stitutional right to a trial by jury.^ § 6. Under the statute — Except in an action to annul a marriage, or for a divorce or a separation; or an action against a corporation, to obtain a dissolution thereof, the appointment of a receiver of its property, or the distribu- tion of its property, unless it is brought by the attorney- general; or an action wherein a defendant, to be afifected 1. Yates V. Russell, 17 Johns. 461; Paige, 529; 43 Am. Dec. 768; Heck- Feeter v. Heath, 11 Wend. 482; ers v. Fowler, 2 Wall. (U. S.) 123. Green v. Patchen, 13 Wend. 293; 2. Lee v. Tillotson, 24 Wend. 337; Bank of Monroe v. Widner, 11 35 Am. Dec. 624. 14 LAW AND PRACTICE AS TO REFERENCE'S. by the result of the trial, is an infant; the whole issue, of any of the issues in an action, either of fact or of law, must be referred, upon the consent of the parties, manifested by a written stipulation, signed by their attorneys and filed with the clerk.3 If the stipulation names the referee the clerk must enter an order, of course, referring the issue or issues for trial, to that person only.* If the referee named in the stipulation refuses to serve, or if a new trial of an ac- tion tried by a referee so named is granted, the court must appoint another referee, unless the stipulation expressly pro- vides otherwise. 5 The last sentence above was added to the statute in 1879.^ Prior to that time the question whether, after granting a new trial, or if the referee refused to serve, the order of reference remained in force, was left unsettled by the courts.^ In a case within the exception noted above, where the parties consent to a reference, the reference shall not be made, of course, but the court may, in its discretion, grant or refuse a reference; and where a reference is granted, the court must designate the referee.* § 7. The referee — Judges of the Court of Appeals, jus- tices of the Supreme Court, and judges of courts of record in the cities of New York, Brooklyn, and Buffalo are pro- hibited from acting as referees.' This prohibition is abso- lute and peremptory and cannot be waived by any stipula- 3. Code of Civ. Proc, §§ 1011, 6. L. 1879, ch. 542. 1012. 7. Preston v. Morrow, 66 N. Y. 4. Code of Civ. Proc, i loii. 542; Kiersted v. O. & A. R. R. Co., 5. Code of Civ. Proc, § lOii; 54 How. 29; Devlin v. Mayor, etc. May V. Moore, 24 Hun, 351; Hustis 54 How. 11; 6 Daly, 486; Elliot v. V. Aldridge, 144 N. Y. 508; 39 N. E. Lewis, 16 Hun, 581. Repr. 649; 64 St. Repr. 40; Brown 8. Code of Civ. Proc, § 1012. V. Root Mfg. Co., 148 N. Y. 299; 42 9. Constitution, 1894, Art. VI, N. E. Repr. 720. § 21. WHO MAY BE REFEREE. 15 tion or act of the parties;'" but its language was held not sufficient to include a commissioner of appeals." In a case where a referee was appointed a justice of the Supreme Court, after the trial was commenced before him as ref- eree, it was held that all proceedings under the reference after he took the oath of office as judge were void; but, the term for which he was appointed as justice having expired, the parties were permitted to proceed with the reference as it stood on the day when the referee assumed the duties of justice of the Supreme Court.'^ A judge cannot be ap- pointed a referee, in an action brought in the court of which he is a judge, except by the written consent of the parties;. and, in that case, he cannot receive any compensation as referee. '3 No person holding the office of clerk, deputy clerk, special deputy clerk, or assistant in the clerk's office, of a court of record within the county of New York, shall hereafter be appointed referee by any court or judge, ex- cept by the written consent of all the parties to the action or special proceeding other than the parties in default for failure to appear or plead;'"* but this provision of the Code has been held unconstitutional in that it divests the court, by legislative enactment, of certain of its constitutional pow- ers.'5 A stenographer of a surrogate's office does not bear such a relation to the Surrogate's Court or office as to bring 10. Countryman v. Norton, 2i 11- Settle v. Van Evera, 49 N. Y, Hun, 17; Heerdegen v. Loreck, 17 280. App. Div. 515; 79 St. Repr. (45 12. Countryman v. Norton, 21 N. Y. Supp.) 585; 4 N. Y. Annot. Hun, 17. Cas. 297. The surrogate of the 13. Code of Civ. Proc, § 1024. county of Monroe shall not act as 14. Code of Civ. Proc, § 90. referee, or practice as attorney or 15. Standfast v. Crotty, ■i^ St, counselor in any court of record in Repr. 672; 13 N. Y. Supp. 584, this state. (Code of Civ. Proc, citing Moore v. Taylor, 40 Hun, 56; § 249s, last sentence.) Popfinger v. Yutte^ 102 N. Y. 38; I St. Repr. 334. lb LAW AND PRACTICE AS TO REFERENCES. him within the scope of the above prohibition.'^ Except in cases provided for by section loii of the Code of Civil Procedure, no person, unless he is an attorney of the court in good standing, shall be appointed sole referee for any purpose in any pending action or proceeding; nor shall any person be appointed a referee who is the partner or clerk of the attorney, or counsel, of the party in whose behalf such application for such appointment is made, or who is in any way connected in business with such attorney or counsel, or who occupies the same office with such attorney or coun- sel.'7 In an action brought to obtain a divorce or separa- tion, or to declare a marriage contract void, the court shall in no case order the reference to a referee nominated by either party, nor to a referee agreed upon by the parties;'^ and where parties proceed in disregard of these provisions the proceedings are void;" and in actions against a corpora- tion for the appointment of a receiver and the distribution of its property, a reference to one not appointed by the court is absolutely void."^" A referee appointed by the court must be free from all just objections, and no person shall be so appointed, to whom all the parties object, except in an action to annul a marriage, or for a divorce or a separa- tion.^' There is no express provision in the statute in re- gard to disqualification of a referee upon the ground of re- lationship to a party, but it would seem that the same rule should apply as in case of a judge^"^ or a juror.^^ Where a 16. Benedict v. Cooper, 3 Dem. 19. Pratt v. Pratt, 2 App. Div. 362; 2 How. (N. S.) 38, citing Es- 534; Ives v. Ives, 80 Hun, 136. tate of Thorn, 4 Law Bull. 48. 20. Fallon v. Egbert's Woolen 17. Supreme Court Rule 79. Mill Co., 24 Misc. 304; 87 St. Repr. 18. Code of Civ. Proc, § 1012; (53 N. Y. Supp.) 672. Supreme Court Rule 72; Pratt v. 21. Code of Civ. Proc, § 1024. Pratt, 2 App. Div. 534; Ives y Ives, 22. Code of Civ. Proc, § 46. 80 Hun, 136. 23. Code of Civ. Proc, § 1166. THE CONSENT TO A REFERENCE. I 7 reference is made by consent of the parties, they may select any number of referees, not exceeding five;^* and in case more than one referee is appointed, at least one of them should be familiar with the subject at issue ;^5 and when there are several referees, if all do not agree, they must all be present at all hearings, and a majority may agree upon the report.^* The referee need not reside in the county where the venue is laid/'' One should not act as referee in a case who has causes pending before the attorney for one of the parties ;^^ nor when he is employed as attorney or counsel by one of the parties ;''*^ but an objection to the person named should be made promptly, as proceeding with- out objection, after knowledge, may constitute a waiver.''' § 8. The consent — The consent to refer should be writ- ten. '" It may be written by the parties or their attorneys, 3' or by counsel, 3^ or by entry in the minutes of the clerk or the referee, if made before them,^^ or it may be by consent in 24. Code of Civ. Proc, § 1025. 510; 49 Hun, 80; i N. Y. Supp. 25. Olmsted v. Loomis, 9 N. Y. 195. 423, 430; Hale V. Swinburn, 17 Abb. 28a. Fortunate v. Mayor, 31 App. N. C. 381, 386; Rosevelt v. Thur- Div. 271. man, 2 Johns. Ch. 220. 29. Catlin v. Adirondack Co., 19 26. Townsend v. Glens Falls Ins. Hun, 389; Carroll v. Lufkins, 29 Co., ID Abb. (N. S.) 277, 28s; 33 Hun, 17; Valenti v. Bryan, 66 How. N. Y. Supp. 131 ; Brown v. Kings- 302; Fudicar v. Guardian Mutual ley, I Johns. Cas. 334; Mclnroy v. Ins. Co., 62 N. Y. 392; Burrows v. Benedict, 11 Johns. 402; Fielden v. Dickinson, 35 Hun, 493; McAllister Lahens, 14 Abb. Pr. 48; Clark v. v. Case, 14 Daly, 385; 13 St. Repr. Fraser, i How. Pr. 98; Code of Civ. 141. Proc, § 1026; People v. Burton, 65 30. Code of Civ. Proc, § 1009. N. Y. 452. 31. Leaycroft v. Fowler, 7 How. 27. O'Brien v. Catskill Mt. R. 259; Waterman v. Waterman, -^y R. Co., 32 Hun, 636; Blake v. Lyon How. 36. Co., yy N. Y. 626. 32. Tiffany v. Lord, 40 How. 481. 28. Carroll v. Lufkins, 29 Hun, 33. Leaycroft v. Fowler, 7 How. 17; O'Brien v. Long, 17 St. Repr. 259; Waterman v. Waterman, 37 How. 36. 2 1 8 LAW AND PRACTICE AS TO REFERENCES. Open court, when entered in the minutes.^'* Upon consent and written stipulation to refer a cause to a person named an order cannot be made referring it to a different person ;25 but this must be a case in which parties are permitted to name the referee. ^^ An oral agreement out of court to refer a cause is not binding.^'' A County Court may, by con- sent of parties, refer an issue of fact brought from a Justice's Court on appeal j^^ but a reference by a court of limited jurisdiction, although by consent, is without jurisdiction, and the report cannot be treated even as an award in ar- bitration, there being no agreement or understanding to that effect.3^^ It is important that the stipulation should state what is intended to be referred. If it be to refer all the issues, the consent will be conclusive, as the order car- ries with it all subordinate matters.^^ The stipulation to refer is tisually in duplicate, or one for each appearance, so that any party may enter the order according to the oro- vision of the stipulation.'^" § 9. Implied consent — Various acts of parties or their attorneys have been held equivalent to a written stipulation, such as appearing before a referee and asking an adjourn- ment,'" appearance in, and proceeding with, the reference,"*^ 34. Lennon v. Smith, 22 Civ. 38. Hyland v. Loomis, 48 Barb. Proc. Rep. 22; Bell v. Vernooy, 18 126; Bell v. Vernooy, 18 Hun, 125. Hun, 125; Macy V. Nelson, 62 N. Y. 38a. Barber v. Lane, 60 App. 638; Lee V. Tillotson, 24 Wend. 337; Div. 87; 68 N. Y. Supp. (102 St. Buckljn V. Chapin, S3 Barb. 488; Repr.) 147. Supreme Court Rule, 11. 39. Jones v. Jones, i St. Repr. 35. Haner v. Bliss, 7 How. 256. 759. 36. Code of Civ. Proc, § 1012. 40. See Form No. I, post. 37. Morrison v. Met. EI. R. R. 41. Keator v. Ulster & Delaware Co., 74 Hun, 639; 57 St. Repr. 198; Plankroad Co., 7 How. 41. 26 N. Y. Supp. 858; Supreme Court 42. Bucklin v. Chapin, 53 Barb. Rule II. 488; 35 How. 155; Quin v. Lloyd, 7 THE ORDER OF REFERENCE. I9 waiting until three months after the order of reference and until plaintiff's case is closed before making objection/^ § 10. The order of reference — The statute provides that when the stipulation names the referee the clerk must enter the order, of course, referring the issue or issues for trial to that person only/* The order must be made by the court and not by the judge ;'*^ it must be upon the consent of all parties;'*'' the action must be at issue as to all parties,'"' and in a case within the exception of section 1012 of the Code, an order appointing a referee agreed upon or named by the parties, or either of them, is void.'** The order must be in writing,'**^ and a certified copy should be delivered to the referee as an evidence of his authority ;''*'' but the entry by the clerk in the minutes of an order is a sufficient com- pliance with section 767 of the Code.'**'^ The fact that the judge holding the term of court at which an order of refer- ence upon stipulation is entered is disqualified from hear- ing the case does not render the order invalid.'*^ The or- der should follow the terms of the stipulation. If it is in- tended to refer all the issues, it should so state, and all subor- Robt. 157; Mastin v. Budington, 18 48. Ives v. Ives, 80 Hun, 136; 61 Hun, 105; Scudder v. Snow, 29 St. Repr. 657; 29 N. Y. Supp. 1053;: How. 9S; Greason v. Keteltas, 17 Pratt v. Pratt, 2 Aop. Div. 574; 74 N. Y. 491; Macy V. Nelson, 62 N. Y. St. Repr. 454; 38 N. Y. Supp. 26s 638; Bingham v. Disbrow, 37 Barb. 36 N. Y. Ann. Cas. 140; Fallon v. 24; Roberts v. White, 73 N. Y. 375; Egbert's Woolen Mill Co., 24 Misc. Amberg v. Kramer, 32 St. Repr. 304; 87 St. Repr. (53 N. Y. Supp.) 177; Miles V. Stewart, 88 Hun, 503. 672. 43. Axt V. Shankey, 30 St. Repr. 48a. Code of Civ. Proc, § 767. 172; 8 N. Y. Supp. 803. 48b. Bonner v. McPhail, 31 Barb. 44. Code of Civ. Proc, § ion. 106. 45. Scudder v. Snow, 29 How. 95. 48c. Gerity v. Seeger & Guernsey 46. Wood V. Swift, 81 N. Y. 31. Co., 163 N. Y. 119. 47. Goodyear v. Brooks, 4 Robt. 49. Bell v. Vernooy, 18 Hun, 125. 682; 2 Abb. Pr. (N. S.) 296; Jansen V. Toppen, 3 Cow. 339. 20 LAW AND PRACTICE AS TO REFERENCES. dinate matters are included.^" si jf less than the whole issues are referred, the order must be specific. § II. Appointing new referee If the referee named in the stipulation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must ap- point another referee, unless the stipulation expressly pro- vides otherwise.5^ This provision of the statute was added in i879;53 it is imperative upon the court^* and applies in an action of ejectment where a new trial is granted under section 1525:55 but the failure of either party to move for the appointment of a new referee may be treated as a con- sent to again try the cause before the same referee.5* § 12. Removal of referee by the court. — In a proper case a referee appointed by the court may be removed by it,57 but there must, in all cases, be some substantial legal ground for such action ;5^ the court has no power, in the absence of allegations of misconduct, to set aside the order of refer- ence and send the case to a new referee for trial de noz'o.^^ 50. Jones v. Jones, i St. Repr. 56. Mitchell v. Village of White 759. Plains, 9 App. Div. 258; 75 St. 51. See Form No. 2, Appendix. Repr. 888; 41 N. Y. Supp. 496; 52. May v. Moore, 24 Hun, 351. citing Catlin v. Adirondack Co., 81 53. L. 1879, ch. 542. N. Y. 379. 64. May v. Moore, 24 Hun, 351 ; 57. Klein v. Continental Ins. Co., Lennon V. Smith, 22 Civ. Proc. Rep. 62 Hun, 341; 42 St. Repr. 207; 17 22; 18 N. Y. Supp. 213; Knowlton N. Y. Supp. 218; Goldberger v. V. Atkins, 134 N. Y. 322; Hustis v. Manhattan Ry. Co., 3 Misc. 441; Aldridge, 144 N. Y. 508; 39 N. E. 52 St. Repr. 320; 23 N. Y. Supp. Rep. 649; 64 St. Repr. 40; Mitchell 176; Macias v. Leony, 113 N. Y. V. Village of White Plains, 9 App. 619; 22 St. Repr. 149; 22 Abb. N. C. Div. 258; 75 St. Repr. 888; 41 N. Y. 465; Ford v. Ford, 53 Barb. 525. Supp. 496. 58. Goldberger v. Manhattan Ry. 55. Brown v. Root Mfg. Co., 148 Co., 3 Misc. 441; 52 N. Y. 320; 23 N. Y. 294; 42 N. E. Rep. 720; affg. N. Y. Supp. 176; Macias v. Leony, 76 Hun, 159; 57 St. Repr. 301; 27 113 N. Y. 441. N. Y. Supp. 551. 59. Macias v. Leony, 113 N. Y. 441. REMOVAL OF REFEREE BY COURT. 21 Erroneous rulings by a referee furnish no grounds for his removal;^" nor friendship of the referee with an assignee upon whose accounts he is to pass;^' neither will a referee be removed upon the ground of prejudice because of well- merited rebuke to the attorney for one of the parties who had used every means in his power to delay the proceed- ings.^^ The fact that the referee and defendant had been drinking liquor together, at defendant's expense, and that the referee altered his report after delivery to defendant's attorney were held sufificient ground for setting aside a ref- eree's report ;*3 so also in a case where the referee, during the trial, importuned the defendant to aid him in securing a political appointment, which was not accomplished, the ref- eree's report in favor of the plaintiff was set aside because of bias and prejudice and a new trial ordered before another referee.*'^ 60. Marie v. Garrison, 7 Civ. 62. Matter of Mellen, 45 St. Proc. Rep. 40; i How. (N. S.) 32. Repr. 349. 61. Eichberg v. Wickham, 21 63. Clark v. Eldred, 54 Hun, 5. N. y. Supp. 647. 64. Burrows v. Dickinson, 35 Hun, 492, 500. 22 LAW AND PRACTICE AS TO REFERENCES. CHAPTER IV. COMPULSORY REFERENCES. Section 13. The statute and its meaning. 14. When cause referable. 15. When cause not referable. 16. Actions for wrongs, not referable. 17. Referability, how determined. 18. What is a long account. 19. Attorney's account for services. 20. Account must be directly involved. 21. When difficult questions of law are involved. § 13. The statute and its meaning. — The court may, of its own motion, or upon the application of either party, without the consent of the other, direct a trial of the issues of fact, by a referee, where the trial will require the exam- ination of a long account, on either side, and will not re- quire the decision of difficult questions of law. In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section, to decide the whole issue or any of the issues, or to report the referee's finding, upon one or more specific questions of fact.' This provision of the stat- ute is made applicable to the City Court of New York.^ The first sentence of the section applies to actions purely equitable, as well as those of strictly legal cognizance ;3 and 1. Code of Civ. Proc, § 1013. land, 139 N. Y. 201; 54 St. Repr. 2. Code of Civ. Proc, § 3160, 605; revg. 2 Misc. 86; 49 St. Repr. subd. 2, as amended by L. 1902, ch. 123; 20 N. Y. Supp. 875; Rowland 515 (p. 1229). V. Rowland, 141 N. Y. 485. 488; 57 3. Dane v. Liverpool, etc., Ins. St. Repr. 595; Doyle v. Met. El. Co., 21 Hun, 259; Barnes v. West, Ry. Co., 136 N. Y. 505, 509; Blake 16 Hun, 68; Read v. Lozin, 31 Hun, v. Harrigan, 38 St. Repr. 26; 20 Civ. 286; Camp V. Ingersoll, 86 N. Y. Proc. Rep. 424: 14 N. Y. Supp. 664; 433; Thayer v. McNaughton, 117 Bates v. Eagleston Mfg. Co., 10 Civ. N. Y. Iii; 26 St. Rep. 843; 18 Civ. Proc. Rep. 268; i St. Repr. 241; Proc. Rep. 3; Cassidy v. McFar- Farmers' Nat. Bank v. Houston, 44 WHEN CAUSE REFERABLE. 2T, there is no difference between express and implied con- tracts.* The second sentence is controlled by the provisions of the first, relating to a long account and to difficult ques- tions of law, and the reference therein provided for can be made only when there is a long account to be examined and it will not require the decision of difficult questions of law."* The words " as prescribed in this section " refer only to the clause " where the trial will require the examination of a long account " and give no power to order a compulsory reference in any other cause triable by the court.^ The purpose of the statute is to relieve the court of the exam- ination of long accounts;^ it is not in any sense mandatory, but permissive only;'' and the court cannot compel a refer- ence except in a case where the right to refer existed at the time of the adoption of the Constitution in 1777.* § 14. When cause referable — The power of the court to order a reference is limited by the conditions contained in Hun, 567; 8 St. Repr. 557; Mayor 7. Godfrey v. Williamsburgh Fire V. Tenth Nat. Bank, 11 Reporter, Ins. Co., 12 Abb. (N. S.) 250; Good- 475; Guaranty Trust Co. v. Robin- year v. Brooks, 27 N. Y. Super, son, 31 Misc. 281. 682; Martin v. Windsor Hotel Co., 4. Dane v. Liverpool, etc., Ins. 70 N. Y. loi; Wheeler v. Falconer, Co., 21 Hun, 259; Averill v. Emer- 30 N. Y. Super. 45; Harris v. Ak- son, 56 St. Repr. 297; 74 Hun, 157; tiebolaget Separator, 21 St. Repr. 26 N. Y. Supp. 650; Thayer v. Mc- 104; 4 N. Y. Supp. 126; Mayor v. Naughton, 117 N. Y. Ili; 26 St. Genet, 67 Barb. 275. Repr. 843; 18 Civ. Proc. Rep. 3; 8. Lee v. Tillotson, 24 Wend, revg. 25 St. Repr. 1039; Spence v. 338; Townsend v. Hendricks, 40 Simis, 137 N. Y. 616; 51 St. Repr. How. 153; Barnes v. West, 16 Hun, 167; revg. I Misc. 384; 49 St. Repr. 68; Van Marter v. Hotchkiss, i 636; 22 N. Y. Supp. 76; People v. Keyes, 585; Ryan v. Atlantic Mut. Wood, 121 N. Y. 522. Ins. Co., 50 How. 321 ; Steck v. 5. Barnes v. West, 16 Hun, 68; Colorado Fuel & Iron Co., 142 Streat v. Rothschild, 12 Daly, 95. N. Y. 236-250; Malone v. Saints 6. Act of 1768 (Van Schaack's Peter and Paul's Church, 69 App. Laws, Vol. 2, p. 517); Godfrey v. Div. 420; 108 St. Repr. (74 N. Y. Williamsburgh Fire Ins. Co., 12 Supp.) 1005; appeal dismissed, 172 Abb. (N. S.) 250. N. Y. 269. 24 LAW AND PRACTICE AS TO REFERENCES. the first clause of section 1013 of the Code;^ there must be evidence showing that the trial will require the examina- tion of a long account.'" Where accounts have been re- ciprocal a reference is proper," as well as where there is an account on one side only.'^ A reference may be ordered in an action to recover back moneys alleged to have been fraudulently charged in an account between the parties;'* but where the complaint alleged that defendant had drawn a much larger sum than was due for services and materials in erecting a building, although a long account was involved, a reference was held not obligatory."* This section of the Code does not authorize a compulsory reference of a com- mon-law action in which plaintiff sued as administrator,'^ as the statute authorizing references, in force at the time of the adoption of the Constitution, expressly excepted actions brought by or against executors or administrators.'^ § 15. When cause not referable. — Where a complaint sets forth several causes of action, one of which is not referable, a compulsory reference will not be ordered ;'' if there is a right to a trial by jury upon any one of them, the motion 9. Averill v. Emerson, 74 Hun, 12. Hossack v. Heyerdahl, 38 157; 56 St. Repr. 297; 26 N. Y. N. Y. Super. 391. Supp. 650; Barnes v. West, 16 13. Sheldon v. Wood, 3 Sandf. Hun, 68; Read v. Lozin, 31 Hun, 739. 286; Camp V. IngersoU, 86 N. Y. 14. Mayor v. Genet, 67 Barb. 433- 275. 10. Coit V. Goodheart, 5 App.Div. 15. Malone v. Saints Peter and 115; 39 N. Y. Supp. 48; Spence v. Paul's Church, 69 App. Div. 420; Simis, 137 N. Y. 616; Cassidy v. 108 St. Repr. (74 N. Y. Supp.) McFarland, 139 N. Y. 201; Row- 1005; 172 N. Y. 269. land V. Rowland, 141 N. Y. 485. 16. Van Schaack's Laws of New 11. Ludlow V. American Exch. York, Vol. 2, pp. 517, 607. Nat. Bank, 59 Barb. 509. 17. Peabody v. Cortada, 50 St. Repr. 743. ACTIONS FOR WRONGS, NOT REFERABLE. 25 to refer must be denied;"* and where a cause of action upon a contract is united with a claim for unhquidated damages for breach of the contract, a reference will not be ordered.'' An action upon an account stated does not involve the ex- amination of a long account and is not referable, although the account consists of numerous items, ^° and a reference will be refused in an action brought to charge a trustee of a manufacturing corporation with a debt on the ground of fail- ure to file an annual report, although the only issue is the indebtedness upon a long account.^' A reference will not be ordered in an action where fraud is involved^"^ nor to as- sess damages, on default, against a carrier for loss of goods. "^^ Such damages must be assessed by a jury.^* In a case where a new trial of an action tried before a referee is granted, and it appears from the former trial that the examination of a long account will not be required, a second reference will be refused.^5 § 16. Actions for wrongs, not referable. — An action of tort could not, before the Act of 1845, be referred.''^ The effect of referring an action of tort, under the Revised Stat- 18. Evans v. Kalbfleisch, 36 N. Y. 290; Bamberger v. Fire Assn. of Super. 450; 16 Abb. Pr. (N. S.) 13; N. Y., 58 N. Y. Super. 244; 32 St. Empire State T. & T. Co. v. Bick- Repr. 117; 10 N. Y. Supp. 229. ford, 142 N. Y. 224. See, however, Devlin v. Mayor, 54 19. Ross v. Combes, 37 N. Y. How. 50; Kingsley v. City of Super. 289. But see Hall v. United Brooklyn, i Abb. N. C. 108; affd.. States Reflector Co., 14 Week. Dig. 7 Abb. N. C. 28; 78 N. Y. 200. 48; affd., 88 N. Y. 655. 23. Warner v. Western Transp. 20. Baker v. Walsh, 9 Week. Dig. Co., 26 N. Y. Super. 705. 18; Rowell v. Giles, 53 How. 244; 24. Hewitt v. Howell, 8 How. Marsen v. Philadelphia Axle Iron 346. Co., I Month. Law Bull. 20. 25. Betjeman v. Brooks, 22 St. 21. Hyatt v. Roach, i Abb. N. C. Repr. 472; 4 N. Y. Supp. 813. 125. 26. Beardsley v. Dygert, 3 Den. 23. Wheeler v. Falconer, 30N. Y. 380; Harris v. Bradshaw, 18 Johns. Super. 4S; Morrison v. Horrocks, 26; Dederick v. Richley, 19 Wend. 40 Hun, 428; Tapscott v. Knowlton, 108. 6 St. Repr. 539; 26 Week. Dig. 26 LAW AND PRACTICE AS TO REFERENCES. utes, althoug-h it involves many items of damages, is an ar- bitration and puts the case out of court,^'' and the same prin- ciple applies under the Code;^^ but if in such an action there be a stipulation to the efifect that judgment may be entered, it will be regular/' A reference will be denied, though a long account is involved, where the action is founded on tort,3° or on fraud,^' or false representations,^^ or conversion,^' or conspiracy,'* or negligence,'' or fraudulent conveyance,'^ or false return by sherifif.'^ So a reference will be refused in an action brought to recover for wrongful payment of dividends out of capital,'^ or damages by rioters," or moneys lost on wagers,*" or for personal injuries,"*' or an assault,*^ or for causing death,*' or for attorney's negligence.** If, however, the complaint states that plaintifif waives the tort and sues upon an implied contract arising from the facts 27. Silmser v. Redfield, 19 Wend. 6 N. Y. Supp. 122; 2 Silv. Sup. Ct. 21. 515- 28. McMaster v. Booth, 4 How. 34. Reilly v. Byrne, I Civ. Proc. 427; 3 Code Rep. in. Rep. 201. 29. Dederick v. Richley, 19 35. Warner v. Western Transp. Wend. 108. Co., 3 Robt. 705; McMaster v. 30. Wickham v. Frazee, 13 Hun, Booth, 4 How. 427; Hoffman v. 431; Chu Pawn v. Irwin, 73 Hun, Sparling, 12 Hun, 83. 184; Wood V. Hope, 2 Abb. N. C. 36. Bushnell v. Eastman, 2 Abb. 186. (N. S.) 411- 31. Morrison v. Horrocks, 40 37. Dewey v. Field, 13 How. 437. Hun, 428; Tapscott v. Knowlton, 6 38. Wickham v. Frazee, 13 Hun, St. Repr. 539; Verplanck v. Ken- 431. dall, 45 N. Y. Super. 525; Mayor v. 39. Ross v. Mayor, 32 How. 164. Tenth Nat. Bank, 11 Reporter, 475; 40. Willard v. Doran & Wright Whelan v. Miller, 2 Law Bull. 46; Co., 48 Hun, 324. Goodyear v. Brooks, 2 Abb. (N. S.) ^l- Thompson v. Fine, 11 Week. 296; 4 Robt. 682. Dig. 182. 32. McCuUough v. Brodie, 13 42. Boyce v. Comstock, Code How. 346; 6 Duer, 659. Rep. (N. S.) 290, 33. Clark v. Candee, 29 Hun, 139; 43. Durkin v. Sharp, 22 Hun, 132. Fiero v. Paulding, 25 St. Repr. 156; 44. Hoffman v. Spariing, 12 Hun, 83. REFERABILITY, HOW DETERMINED. 2/ alleged, the action may be referred i*' and the fact that the complaint alleges that a settlement has been procured by fraud will not affect the jurisdiction of the court to order a reference.'*^ The rule as to compulsory references applies to equitable as well as legal actions/^' and the absolute right to a jury trial in actions of tort cannot be denied.*^ § 17. Referability, how determined — It is often a difficult matter to determine whether an action is referable without the consent of both parties. The general rule is that the question must be determined by the complaint alone.*' If the cause of action alleged in the complaint is not referable, the action cannot be made referable by anything contained in the answer,'" and if the complaint shows a cause of action 45. Sage v. Shepard & M. L. Co., People v. Wood, 54 Hun, 438; 28 27 N. Y. Supp. 539; Nat. Shoe & St. Repr. 289; 7 N. Y. Supp. 712; Leather Bank v. Baker, 148 N. Y. Chu Pawn v. Irwin, 73 Hun, 182; 581. 56 St. Repr. 123; 25 N. Y. Supp. 46. Rowland v. Rowland, 141 N. 871; Townsend v. Hendricks, 40 Y. 485; 57 St. Repr. 595; affg. 75 How. 143; Untermyer v. Beinhauer, Hun, 58s; 57 St. Repr. 652; 27 N. 105 N. Y. 521; Cassidy v. McFar- Y. Supp. 606. land, 139 N. Y. 201; Steck v. Col. 47. Blake v. Harrigan, 38 St. F. & I. Co., 142 N. Y. 239; Camp Repr. 26; 14 N. Y. Supp. 663; 20 v. Ingersoll, 86 N. Y. 433; Spence 20 Civ. Proc. Rep. 424; Dane v. Liv. v. Simis, 137 N. Y. 616; Rowland v. L. & G. Ins. Co., 21 Hun, 259; Rowland, 141 N. Y. 485; Feeter v. Farmers' Nat. Bank v. Houston, 8 Arkenburgh, 147 N. Y. 237; Na- St. Repr. 557; Morrison v. Hor- tional Shoe & Leather Bank v. rocks, 40 Hun, 428. Baker, 148 N. Y. 581 ; Cantine v. 48. Hewitt v. Howell, 8 How. Russell, 168 N. Y. 484; Guaranty 346; Godfrey v. Williamsburgh Fire Trust Co. v. Robinson, 31 Misc. Ins. Co., 12 Abb. (N. S.) 250. 277. 49. Williams v. Allen, 2 Hun, 50. Townsend v. Hendricks, 40 377; 48 How. 357; Gregory v. Sea- How. 143; Welsh v. Darragh, 52 man, 51 N. Y. Super. 517; Wood v. N. Y. 590; Untermyer v. Bein- Hope, 2 Abb. N. C. 186; Welsh v. hauer, 105 N. Y. 521 ; Cassidy v. Darragh, 52 N. Y. 590; Andrews v. McFarland, 139 N. Y. 201; Steck v. Wallace, i Law Bull. 19; Verplanck Col. F. & L Co., 142 N. Y. 236. V. Kendall, 45 N. Y. Super. 525; 28 LAW AND PRACTICE AS TO REFERENCES. that is referable, no allegation contained in the answer can make it nonreferable.^' Owing to the language of the statute " where the trial will require the examination of a long account, either on one side or the other," ^^ this question has been the subject of much controversy and discussion as witnessed by the numerous cases cited and has been carefully considered by the Court of Appeals, and it seems that the words have not always been literally construed. Their literal meeting has frequently been limited, as shown by the decisions, both in that court and others. In a case decided by the Court of Appeals in 1894," Judge Earl, in the prevailing opinion, gives a his- tory of legislation upon the question of compulsory refer- ences and set-offs, and sums the matter up in the following language: "This discussion, therefore, comes to this: If the plaintiff brings his action ujx)n a long account, then it is such as was referable prior to 1777, and as the examina- tion of a long account is required on his side, the defendant cannot defeat a reference by anything he may set up in his answer by virtue of the statutes allowing set-offs and counter- claims. If plaintiff's cause of action be upon contract for a definite sum of money, or for damages, ex contractu, and his cause of action be not gainsaid by the defendant, and the defendant sets up a counterclaim which requires the exam- ination of a long account, then the case is such as would have been referable under the Act of 1768. But, if in such action the plaintiff's cause of action be disputed, then a case is presented which, prior to 1777, gave the parties the abso- lute right to a jury trial, and that right cannot be taken away 51. Welsh V. Darragh, 52 N. Y. meyer v. Beinhauer, 105 N. ¥.521; 590; Andrews v. Wallace, I Law Cowden v. Teale, 6 Hun, 532; affd., Bull. 19; Williams v. Allen, 2 Hun, 67 N. Y. 581. 377; 48 How. 357; Verplanck v. 52. Code of Civ. Proc, § 1013. Kendall, 45 N. Y. Super. 525; Chu 53. Steck v. Col. F. & I. Co., 142 Pawn V. Irwin, 73 Hun, 182; Unte- N. Y. 236. WHAT IS A LONG ACCOUNT. 29 or destroyed by anything which the defendant may set up in his answer. These views furnish a plain rule for the guidance of courts, resting upon solid basis, and I think it would be most unwise to countenance any other practice." '* Thus, where plaintifif's cause of action was expressly admit- ted and litigation was over affirmative allegations in defend- ant's answer, which thereupon became the complaint, a ref- erence was properly ordered.'' So where an answer set up affirmative defenses, indicating that the examination of a long account would be necessary, even where the complaint did not show that the action was referable, a reference on plaintifif's motion was ordered.'* § 18. What is a long account — Notwithstanding the fact that the books are full of cases in which the question of the 54. Id., p. 251. While it is said in Steck v. Colorado Fuel & Iron Co. (142 N. Y. 236), that when the cause of action alleged in the com- plaint is not referable, and the same is put in issue, the action cannot be made referable by anything which the defendant may set up in his answer, yet in an action upon a promissory note, where the an- swer alleged that the note was without consideration and denied that any sum was due and owing thereon from the defendant, and further set forth certain stock transactions between the parties, out of which a false account against the defendant was created, for which he was induced to give the note in suit, it was held that, al- though the cause of action alleged in the complaint appeared on its face to be nonreferable, yet as upon the trial of the action the plain- tiffs (since the answer denied that the note was given for value) would be compelled to give proof in regard to the stock transactions which were the consideration of the note, and as this would necessarily involve the examination of a long account, a compulsory reference of the action was justified. (Irving v. Irving, 90 Hun, 422; 70 St. Repr. 540; 35 N. Y. Supp. 744; affd., 149 N. Y. 573.) 55. Hall V. United States Re- flector Co., 95 N. Y. 648; 14 Week. Dig. 48. 56. Guaranty Trust Co. v. Robin- son, 31 Misc. 277; 64 N. Y. Supp. 366. Where the complaint alleged the delivery of a large number of items of goods to the defendant, at various times during three years, and the defendant admits the de- livery of certain goods and denies all other allegations of the com- plaint, the plaintiff is not relieved from the necessity of proving the delivery and value of each item of goods; and the issues raised by the 30 LAW AND PRACTICE AS TO REFERENCES. power of the court to order a compulsory reference has been discussed, and an attempt made to solve and settle it, it has never, either before or since the Code, been clearly and dis- tinctly determined what constitutes a long account within the meaning of the law.^' The account intended by the Code to be referred is the same as that of the Revised Stat- utes ;5^ and items on one side only constitute an account. 5' To sustain a compulsory order of reference on the ground that a long account is involved, it must be shown that the number of items is such that a jury cannot keep in mind the evidence in regard to each, so as to give it due weight.*" Where plaintiff's bill of particulars contained over ninety items, each of which was put in issue, this was held a long ac- count;*' so, also, an account of seven items, some of them composed of numerous charges;*^ so is one of fifty-one items ;*3 of one hundred items;** so a case of twenty-six complaint and defenses to it are 437; McCullough v. Brodie, id. referable, under section 1013 of the 346; 6 Duer, 659. Code of Civil Procedure, upon the 59. Hosack v. Heyerdahl, 38 ground that they will involve the N. Y. Super. 391. examination of a long account. 60. Spence v. Simis, 137 N. Y. But the fact that the issues thus 616; 51 St. Repr. 167; revg. i Misc. raised are referable does not de- 384; 49 St. Repr. 636; 22 N. Y. prive the defendant of the right, Supp. 76; Weidenfeld v. Woolfolk, under section 974 of the Code of 26 Misc. 150; 56 N. Y. Supp. (90 Civil Procedure, to a jury trial of St. Repr.) 740. the issues raised by a counterclaim 61. Hibbard v. Com. All. Life set up in the answer and the reply, Ins. Co., 4 Misc. 422; 53 St. Repr. and the issues raised by the com- 517; 24 N. Y. Supp. 332; affd., 141 plaint and answers to it were re- N. Y. 549; 57 St. Repr. 865. ferred, leaving the issues raised by 62. Marcile v. Saltzman, 6 St. the counterclaim and reply to be Repr. 48. tried by a jury in the usual way. 63. Jackson v. Kinsey, 28 St. (Hoffman House v. Hoffman Repr. 394; Canda v. Robbins, 7 House Cafe, 36 App. Div. 176; 55 N. Y. Supp. 895. N. Y. Supp. 763.) 64. Van Orden v. Tilden, 13 57. Batchelor v. Albany City Ins. Daly, 396. See also McKay v. Co., 31 N. Y. Super. 346; 37 How. Jarvis, 8 Week. Dig. 155; Bissell v. 399; 6 Abb. (N. S.) 240. Whipple, 8 Week. Dig. 262; Sage 58. Dewey v. Field, 13 How. v. Shepard & Morse L. Co., 76 REFERABILITY, HOW DETERMINED. 31 items/5 Where a complaint alleged sales of goods on thir- teen different dates, proof of all of which would be required, a compulsory reference was held proper;** but a complaint for wood and coal on fifteen different dates held not.*^ Many items of damages are not an account.*^ An account of many items, purchased at the same time, is not a long ac- count;*^ an account of four items is not;^" five items is not.'' A plumber's account of forty-three items for services and materials furnished under one employment and in one trans- action is not a long account. '- An action upon an account stated does not involve the examination of a long account and is not referable, although the account consists of nu- merous items ;'3 but an action on a physician's bill contain- Hun, 134; 57 St. Repr. 329; 27 N. Y. Supp. 559; affd., 143 N. Y. 623; 60 St. Repr. 873. 65. Welsh V. Darragh, 52 N. Y. 590. 66. Roberson v. Murray, 73 Hun, 490; 56 St. Repr. 35; 26 N. Y. Supp. 480. 67. Spence v. Simis, 137 N. Y. 616; 51 St. Repr. 167. 68. Thomas v. Reab, 6 Wend. 503; Dewey v. Field, 13 How. 437_; Sharp V. Mayor, etc., 9 Abb. Pr. 426; 18 How. 213; affd., 31 Barb. 578; 19 How. 193; Turner v. Taylor, 2 Daly, 278; Bell v. Mayor, 11 Hun, 511; Untermyer v. Beinhauer, 105 N. Y. 521 ; 8 St. Repr. i ; 26 Week. Dig. 428; Mitchell v. Oliver, 56 Hun, 208; 31 St. Repr. 120; 9 N. Y. Supp. 367; Blake v. Harrigan, 38 St. Repr. 26; 20 Civ. Proc. Rep. 424; 14 N. Y. Supp. 663; Morrison V. Van Benthuysen, 103 N. Y. 675; Kain v. Delano, 11 Abb. (N. S.) 29; Ross V. Mayor, 2 Abb. (N. S.) 266; 32 How. 164; Goodfellow v. Wolcott, 12 St. Repr. 620. 69. Stewart v. Elwele, 3 Code Rep. 139; Whitaker v. Desfosse, 20 N. Y. Super. 678; Swift v. Wells, 2 How. 79; Smith v. Brown, 3 How. 9; Miller v. Hooker, 2 How. 171; Harris v. Mead, 16 Abb. Pr. 257; Farrell F. & M. Co. v. The Anvil Horse Shoe & Nail Co., i Week. Dig. 350; Freeman v. Atlantic Mut. Ins. Co., 13 Abb. 124; Brink v. Re- public Fire Ins. Co., 2 T. & C. 550; Levy V. Brooklyn Fire Ins. Co., 25 Wend. 687. 70. Parker v. Snell, 10 Wend. 577- 71. Dickinson v. Mitchell, 19 Abb. Pr. 286. 72. Leary v. Albany Brewing Co., 66 App. Div. 407; 72 N. Y. Supp. 657. 73. Baker v. Walsh, 9 Week. Dig. 18; Rowell v. Giles, 53 How. 244; Marsen v. Philadelphia Arch. Iron Co., I Month. Law Bull. 20; Canning v. Whitney, 12 Civ. Proc. Rep. 443; 9 St. Repr. 830; 27 Week. Dig. 9; Reiser v. Plath, 36 St. Repr. 34; 13 N. Y. Supp. 272. 32 LAW AND PRACTICE AS TO REFERENCES. ing more than forty items, " all of which stands as an account stated by bills rendered and agreed to," does not make the action one on an account stated, and a compulsory reference is proper. ''3^ § 19. Attorney's account for services The court has power to order the reference of an action brought by an at- torney for his services;'''* but such an action will be referred only when it appears that it would be impracticable to try the case before a jury. ''5 Courts are loth to order a refer- ence upon an attorney's account, except in cases where the account is complicated and embarrassing;-'^ and it is entirely at the discretion of the court whether such reference will be ordered or not.'''' There is no well-defined rule govern- ing the courts in this class of cases and each case must stand on its own merits, as will be seen by the cases referred to below. The following actions upon attorneys' accounts have been held properly referable: An action by an attorney for various services, including the management of suits in various courts, the drawing of deeds and other instruments, the ex- amination of titles to lands, charges for disbursements, etc., including many items, where a general denial was inter- posed;''* where the bill of particulars showed the prosecution and defense of nine different suits and upward of sixty dif- 73a. Nicoll v. Haas, 5 App. Div. '76. Martin v. Windsor Hotel 206; 39 N. Y. Supp. 205. Co., 10 Hun, 304; Watson v. 74. Stebbins v. Cowles, 30 Hun, Cooley, i8 St. Repr. 880; 3 N. Y. 523; 4 Civ. Proc. Rep. 302; 66 How. Supp. 211. 28; Maxwell v. Cottle, 72 Hun, 529; 77. Stebbins v. Cowles, 30 Hun, SS St. Repr. 127; 25 N. Y. Supp. 523; 4 Civ. Proc. Rep. 302; 66 How. 625; Amsdell v. Martin, 20 Week. 28; Maxwell v. Cottle, 72 Hun, 529; Dig. 370. 55 St. Repr. 127; 25 N. Y. Supp. 75. Watson v. Cooley, 56 N. Y. 635; Martin v. Windsor Hotel Co., Super. 247; 3 N. Y. Supp. 211; 18 10 Hun, 304; 70 N. Y. loi. St. Repr. 880. '78. Schermerhorn v. Wood, 4 Daly, 158. attorney's account for services. 33 ferent charges and disbursements;'' where it appeared that the services were rendered in many and different proceed- ings, both civil and criminal, and upon separate and distinct requests;^" where it appeared that the issues would neces- sarily involve a long account and where defendant set up a counterclaim;*' where plaintiiif's bill of particulars showed twenty-four different items of money paid;*"^ where defend- ant's answer was in such form as to require plaintifif to prove seventy-three items ;*-^ and where the bill of particulars showed a large number of items in numerous proceedings, of a complicated nature.** The following have been held not referable: Actions for services in one suit, involving numerous items ;*5 where ser- vices were confined to looking after the interest of defendant as executor of an estate and one or two personal matters, — the bill presented showing one hundred and fifty items ;*^ an action for services and disbursements in four different suits;*'' where the claim covered a period of seven years and included sixty-eight items;** an action on a single retainer, 79. Byrne v. Delamater, i Month. Bank of Elmira, 19 Week. Dig. 206; Law Bull. 62. Randall v. Sherman, 131 N. Y. 669; 80. Hale v. Swinburne, 17 Abb. 43 St. Repr. 923; Fitch v. Volker N. C. 381. & Felthousen Mfg. Co., 70 Hun, 81. Gregory v. Seaman, 51 N. Y. 71; 53 St. Repr. 443; 23 N. Y. Supp. Super. 517. 1 103; Abbott v. Corbin, 22 App. 82. Robinson v. Lake Erie, etc., Div. 584; 48 N. Y. Supp. (82 St. R. R. Co., 53 N. Y. Super. 152; 12 Repr.) 102; Hoes v. Allen, 28 Misc. St. Repr. 66; 27 Week. Dig. 527; 450; 59 N. Y. Supp. (93 St. Repr.) aflfd., 109 N. Y. 658. 91. 83. Risley v. Jewett, 25 St. Repr. 86. Feeter v. Arkenburgh, 147 552; 6 N. Y. Supp. 315. N. Y. 237; 69 St. Repr. 523; 2 84. Richards v. Stokes, i App. N. Y. Annot. Cas. 270. Div. 305; 72 St. Repr. 526; 37 N. Y. 87. Spence v. Simis, 137 N. Y. Supp. 246. 616; 51 St. Repr. 167; revg. i Misc. 85. Felt V. Tiffany, 11 Hun, 62; 384; 49 St. Repr. 636; 22 N. Y. Ridgeway v. Taylor, 5 Week. Dig. Supp. 76. 250; Tracy V. Stearns, 61 How. 265; 88. Bradley v. Eager, 5 Week, 24 Hun, 662; Benn v. First Nat. Dig. 330. 3 34 LAW AND PRACTICE AS TO REFERENCES. based upon daily charges of about one hundred items ;*3 where plaintiff set forth four causes of action, each contain- ing numerous items;'" for services during fifteen months in connection with the settlement of accounts as executor, pro- ceedings instituted by board of health and items of fifty-seven consultations;'' where services extended over a period of four years and included seven different suits or proceedings in court besides contracts and documents ;''^ and where the action was founded on twenty-five items of services and credits. '3 § 20. Account must be directly involved. — The account must be the immediate object of the action or defense and not the incidental or collateral object.'* Reference can only be compelled where the court can see that the trial must in- volve the examination of a long account.'^ It is not enough 89. Randall v. Kingsland, S3 How. 512. See also Randall v. Sherman, 131 N. Y. 669; 43 St. Repr. 923. 90. Estes V. Dean, I App. Div. 34; 71 St. Repr. 678; 36 N. Y. Supp. 747- 91. Hoar v. Wallace, 24 App. Div. 161; 82 St. Repr. (48 N. Y. Supp.) 748. 92. Hedges v. Methodist Church of Williamsb.urgh, 23 App. Div. 347; 48 N. Y. Supp. (82 St. Repr.) 154; revg. 21 Misc. 174; 47 N. Y. Supp. (81 St. Repr.) 93. 93. Angel v. Rae, 27 Misc. 829; 57 N. Y. Supp. (91 St. Repr.) 817. 94. Kain v. Delano, 11 Abb. (N. S.) 29; Turner v. Taylor, 2 Daly, 278; Wickham v. Frazee, 13 Hun, 431; Keep v. Keep, 58 How. 139; Camp v. Ingersoll, 86 N. Y. 433; I Civ. Proc. Rep. 340; 13 Week. Dig. 149; revg. 47 N. Y. Super. 534; Keller v. Payne, 51 Hun, 316; 21 St. Repr. 387; 4 N. Y. Supp. 272; Todd V. Hobson, 3 Johns. Cas. 517; Willard v. Doran & Wright Co., 48 Hun, 402; 16 St. Repr. 497; •28 Week. Dig. 438; i N. Y. Supp. 34S. 588; Continental Ins. Co. v. Phoenix Ins. Co., 29 St. Repr. 362; 8 N. Y. Supp. 524; Silraser v. Red- field, 19 Wend. 21; Evans v. Kalb- fleisch, IS Abb. (N. S.) 13; 36 N. Y. Super. 4So; C. & C. Electric Co. v. Walker, 3s App. Div. 426; Traders' Nat. Bank v. Werner, S4 App. Div. 435; 100 St. Repr. (66 N. Y. Supp.) 996. 95. Keeler v. Poughkeepsie & S. P. Plankroad Co., 10 How. 11; Sheldon v. Weeks, 7 N. Y. Leg. Obs. S7; Cameron v. Freeman, 10 Abb. Pr. 333; 18 How. 310; Mitchell V. Stewart, 3 Abb. (N. S.) 250; Smith v. N. Y. C. & H. R. R. R. Co., 29 Misc. 439; 95 St. Repr. (6r WHEN DIFFICULT QUESTIONS OF LAW INVOLVED. 35 to justify a compulsory reference, that the case may, by pos- sibihty, involve the examination of a long account.'* It is the commercial or financial account to which the Code re- lates, the account in trade or in finance and not a statement of items or elements of damages for a contract broken, which, if fulfilled and prosecuted, might require the examination of items in detail.'^ So in a creditor's action under the statute, to set asiHe a fraudulent conveyance by a deceased insolvent debtor, which involves as one of the issues the es- tablishing of the debt and the taking of a long account, the action is compulsorily referable. '^ So also to relieve the court, where the calendar was crowded, a reference in an equitable action to set aside a conveyance on the ground of fraud, was ordered. '' § 21. When difficult questions of law are involved. — Ref- erences will not be granted where it appears that questions of law are involved,"" even if a reference would be otherwise proper, as involving the examination of a long account."" To warrant the denying of a reference the court must be sat- N. Y. Supp.) 934; NicoU V. Haas, Bank v. Baker, 148 N. Y. 581; ; 5 App. Div. 206; 39 N. Y. Supp. N. Y. Annot. Cas. 57; affg. go Hun. 205. 277; 70 St. Repr. 600; 35 N. Y. 96. Thayer v. McNaughton, 117 Supp. 933. N. Y. Ill; 18 Civ. Proc. Rep. 3; 99. McMahon v. Allen, 10 How. 26 St. Repr. 843; Keogh Mfg. Co. 384. V. Molton, 40 St. Repr. 688; 16 100. Code of Civ. Proc, § 1013. N. Y. Supp. 6s; Cornell v. United De Hart v. Covenhoven, 2 Johns. States Illuminating Co., 41 St. Repr. Cas. 401; Low v. Hallett, 3 Cai. 82; 172; 16 N. Y. Supp. 306; Cassidy v. Codwise v. Hacker, 2 Cai. 25; Col. McFarland, 139 N. Y. 201; 54 St. & Cai. Cas. 401; Adams v. Bayles, Repr. 605; revg. 2 Misc. 86; 49 St. 2 Johns. 374; Ives v. Vandewater, Repr. 123; 20 N. Y. Supp. 875; i How. 168; Rochester v. Mayor, Loven'n v. Lenox Corporation, 35 3 How. (N. S.) 527; 9 Civ. Proc. App. Div. 263; 88 St. Repr. (S4 Rep. 226; Read v. Lozin, 31 Hun, N. Y. Supp.) 724. 286. 97. Bell v. Mayor, 11 Hun, 511. 101. Magown v. Sinclair, 5 Daly, 98. National Shoe & Leather 63. 36 LAW AND PRACTICE AS TO REFERENCES. isfied that there will be a question of real difficulty,"^ and these need not be such as arise from the facts presented, but include those which may grow out of the reference, '"^ and where, upon an examination of the pleadings, it appears that difficult questions of law will arise, the court may well deny a motion for a reference. '"^ 103. Anonymous, 5 Cow. 423. 104. Bamberger v. Fire Assn., 103. Goodyear v. Brooks, 27 32 St. Repr. 117; Shaw v. Ayres, 4 N. Y. Super. 682; 2 Abb. (N. S.) Cow. 52; Hibbard v. Com. Al. Life 296. Ins. Co., 24 N. Y. Supp. 332. APPLICATION FOR COMPULSORY REFERENCE. 37 CHAPTER V. APPLICATION FOR COMPULSORY REFERENCE. Section 22. Application for reference, how made. 23. Application for reference, when made. 24. The moving papers. 25. Application, how opposed. 26. The referee. 27. The order of reference. 28. Order, how reviewed. § 22. Application for reference, how made The applica- tion for a compulsory reference of an action being a non- enumerated motion' should be made at Special Term,"^ ex- cept in the first judicial district, where it may be made to a judge out of court ;3 and except where it is made at Trial Term, and then, only when the cause is reached in its regular order on the calendar.* It must be made upon a written no- tice of eight days;5 but the court may in a proper case dis- pense with all notice and order a reference on its own mo- tion, without any application by the parties, or either of them.^ Even in a case where a trial is begun the court may take the case from the jury and send it to a referee if it ap- pears that the examination of a long account is required.' § 23. Application for reference, when made — An action cannot be referred until it is at issue as to all parties,* nor 1- Supreme Court Rule 38; Con- '5. Code of Civ. Proc, § 780. way V. Hitchins, 9 Barb. 378. 6. Code of Civ. Proc, § 1013; 2. Supreme Court Rule 38; Scud- Hawkins v. Avery, 32 Barb. 551; der V. Snow, 29 How. 95; Cleve- Goodyear v. Brooks, 27 N. Y. land V. Strong, 2 Cow. 448; Feeter Super. 682; 2 Abb. (N. S.) 296; v. Harter, 7 Cow. 478. Church v. Freeman, 16 How. 294. 3. Code of Civ. Proc, § 770. 7. Holmes v. Bennett, 28 How. 4. Wheeler v. Falconer, 7 Robt. 289. 45; McCown V. Rowland, y^ Wend. 8. Hawkins v. Avery, 32 Barb. 85. SSi; Goodyear v. Brooks, 27 N. Y. 38 LAW AND PRACTICE AS TO REFERENCES. until after an issue of law joined, is determined.' The ob- jection that the cause is not in readiness for trial must be taken on the motion to refer and cannot be taken after- ward." A party does not waive his right to move for an order of reference, if the right thereto exists, by noticing the cause for trial;" and an order framing the issues for trial by a jury is not a bar to a motion for a reference where a long account is involved.''' In an action for an accounting a ref- erence will be ordered at any stage of the case when it be- comes manifest that this will serve the ends of justice ;'3 but where the right to an accounting is denied, the defendant is entitled to a determination of that issue before a reference is ordered."* § 24. The moving papers. — The statute prescribes the con- ditions under which a compulsory reference may be ordered. It can only be done where the trial will require the exam- ination of a long account on either side, and will not require the decision of difficult questions of law.'^ These facts must appear in order to justify the court in ordering a reference against the consent of either party.'* The moving papers Super. 682; 2 Abb. (N. S.) 296; 14. Knox v. Gleason, 63 App. Wheeler v. Falconer, 30 N. Y. Div. 99; 71 N. Y. Supp. (105 St. Super. 45; Cochran v. Thurber, 21 Repr.) 213; Hill v. Hughes, 5 App. St. Repr. 37; Kimball v. Mason, 61 Div. 226; 39 N. Y. Supp. 204. Hun, 337; 40 St. Repr. 646; 16 N. Y. 15. Code of Civ. Proc, § 1013. Supp. 72. 16. Thayer v. McNaughton, 117 9. Jansen v. Tappen, 3 Cow. 339. N. Y. iii; 26 St. Repr. 843. Under 10. Hawkins v. Avery, 32 Barb, the Code of Procedure it was held 551. by the Court of Appeals that the 11. Hong Kong & S. B. Co. v. right of a trial, in the mode and by Seeley, 7 St. Repr. 496. the tribunal prescribed by law, is a 12. Roslyn Heights L. & I. Co. substantial right, and it does not V. Burrowes, 76 Hun, 62; 27 U. Y. vest in the discretion of the court Supp. 622. to deprive a party of that right, or 13. Rutty V. Person, 49 N. Y. to compel him to submit to the Super. 55. See also Brown v. trial of an action, except in the Finch, 45 St. Repr. 328; 18 N. Y. manner and in the forum author- Supp. 551 ; afifd., 133 N. Y. 671. ized by law. The law only author- MOVING PAPERS FOR REFERENCE. 39 must show that issue is joined,'' that a long account is nec- essarily involved,'^ and that the decision of difficult ques- tions of law will not be required." The motion must be founded on affidavit,^" although verified pleadings are legal evidence upon the question whether a long account is in- volved,^' and an order should not be granted without an inspection of the pleadings. ^^ The affidavit to move for reference must be made by the party, or the omission ex- cused ;''3 and it must state facts from which the conclusion is drawn that the examination of a long account will be re- quired,^* and it must affirmatively appear that the examina- izes a compulsory reference of a single class of cases, viz.: those ac- tions in which the trial of an issue of facts will require the examina- tion of a long account; and when not referable under the statute, they must be tried either by a jury or by the court, unless the parties assent to some other form of trial. (Kain v. Delano, ii Abb. [N. S.] 29.) In McAIeer v. Sinnott (30 App. Div. 318; 85 St. Repr. 956; 51 N. Y. Supp. 956), Mr. Justice Bart- lett wrote: "To warrant a com- pulsory order of reference, facts must be disclosed ' from which the conclusion can be fairly drawn that so many separate and distinct items of account will be litigated on the trial that a jury cannot keep the evidence in mind in regard to each of the items and give it the proper weight and application.' " (See also Spence v. Simis, 137 N. Y. 616.) 17. Jansen v. Tappen, 3 Cow. 339; Dutcher v. Wilgus, 2 How. 180. 18. Kain v. Delano, 11 Abb. (N. S.) 29; Bates v. Eagleton Mfg. Co., 10 Civ. Proc. Rep. 218; Welsh V. Darragh, 52 N. Y. 691 ; Spence V. Simis, 137 N. Y. 616; Cassidy v. McFarland, 139 N. Y. 201; Craw- ford V. Canary, 28 App. Div. 136; 84 St. Repr. (50 N. Y. Supp.) 874. 19. Bates v. Eagleton Mfg. Co., 10 Civ. Proc. Rep. 218; i St. Repr. 241. See next section and cita- tions. 30. Cleveland v. Strong, 2 Cow. 448; Feeter v. Harter, 7 Cow. 478; Holmes v. Bennett, 28 How. 289; Crawford v. Canary, 28 App. Div. 175; SO N. Y. Supp. (84 St. Repr.) 874. 21. Holmes v. Bennett, 28 How. 289; Lord V. Connor, 48 How. 95; Robinson v. N. Y., L. E. & W. R. R. Co., 12 St. Repr. 66. 23. Cuthbert v. Hutchins, 7 App. Div. 251; 40 N. Y. Supp. 277. 23. Wood V. Crownei-, 4 Hill, 548; Mesick v. Smith, 2 How. 7; Ross V. Beecher, id. 157; Settle v. Bigelow, id. 164; Van Ingen v. Herold, 19 N. Y. Supp. 456; 46 St. Repr. 425. 34. Kain v. Delano, 11 Abb. (N. S.) 29; De Graaf v. Mackinley, 38 N. Y. Super. 203; Knope v. Nunn, 75 Hun, 287; 58 St. Repr. 217; 26 N. Y. Supp. 1074; Cornell V. United States 111. Co., 41 St, Repr. 173; 16 N. Y. Supp. 306. 40 LAW AND PRACTICE AS TO REFERENCES. tion of a long account is necessary^s and is directly in- volved j^^^ the possibility of a long account being involved is not sufficient.-''' If a motion for reference has been once denied, leave to renew the motion must be obtained before it can be again made.^^ § 25. Application, how opposed. — In opposing the motion for a reference it may be shown by affidavit that difficult ques- tions of law will arise ;^* it must be made to appear what the questions of law are, so that the court may determine whether they are questions of real difficulty.^' The granting or re- fusing of a reference is always within the discretion of the 25. Cassidy v. McFarland, 139 N. Y. 201; 54 St. Repr. 505; revg. 49 St. Repr. 123; 2 Misc. 86; 20 N. Y. Supp. 875; Keeler v. Pough- keepsie Plankroad Co., 10 How. 11; Dickinson v. Mitchell, 19 Abb. 286; Sharp V. Mayor, 18 How. 213; 9 Abb. 426; affd., 31 Barb. 578; 19 How. 193; Cameron v. Freeman, 18 How. 310; ID Abb. 333; Kennedy V. Skilton, 9 Abb. I57n; i Hilt. 546; Kain v. Delano, 11 Abb. (N. S.) 29; Averill v. Emerson, 74 Hun, 157; 56 St. Repr. 297; 26 N. Y. Supp. 650; Cont. Ins. Co. v. Phcenix Ins. Co., 29 St. Repr. 362; 8 N. Y. Supp. 524; Mitchell V. Oliver, 31 St. Repr. 720; 9 N. Y. Supp. 367; Thayer v. McNaughton, 117 N. Y. iii; 26 St. Repr. 843; 18 Civ. Proc. Rep. 3; revg. 25 St. Repr. 1039. 25a. Keller v. Payne, 51 Hun, 316; Quinn v. McDonald, 32 St. Repr. 722; Cont. Ins. Co. v. Phoenix Ins. Co., 29 St. Repr. 362; Imp. & Trad. Bank v. Werner, 54 App. Div. 435; Mitchell v. Oliver, 56 Hun, 208; Coit V. Goodheart, 5 App. Div. lis; Silver Mining Co. v. Knowlton, 6 St. Repr. 526. 26. Cameron v. Freeman, 18 How. 310; ID Abb. 333; Keogh Mfg. Co. V. Molten, 40 St. Repr. 688; 16 N. Y. Supp. 65; Cornell v. United States 111. Co., 41 St. Repr. 172; 16 N. Y. Supp. 306. 27. Chamberlain v. Dumville, 21 N. Y. Supp. 827. 28. De Hart v. Covenhoven, 2 Johns. Cas. 402; Adams v. Bayles, 2 Johns. 374; Lusher v. Walton, i Cai. 149; Ives v. Vandewater, i How. 168; Salisbury v. Scott, 6 Johns. 329; Barber v. Crownswell, 10 How. 351; Dewey v. Field, 13 How. 437. 29. Dewey v. Field, 13 How. 437; Patterson v. Stettauer, 39 N. Y. Super. 413; Welsh v. Darragh, 52 N. Y. 590; Cass V. Cass, 16 N. Y. Supp. 229; 41 St. Repr. 36; Hibbard V. Com. All. Life Ins. Co., 4 Misc. 422; 53 St. Repr. 577; 24 N. Y. Supp. 332; afTd., 141 N. Y. 549; 57 St. Repr. 865; Ryan v. Atlantic Mut. Ins. Co., so How. 321; Ives v. Vandewatej-, i How. 168. WHO MAY BE REFEREE. 4I court,^° and any fact which may tend to defeat the motion may be shown, such as the action not being at issue as to all parties,^' or where all parties are not before the court,^^ or delay in moving for reference until cause was on day calen- dar for trial, 33 or that the motion is made in the wrong branch of the court. 3* The objections to the granting of an order of reference must be taken when the motion is made;35 otherwise the irregularity will be waived.3* Ofifer- ing at the time of the motion to admit the items of the ac- count is an answer to the motion,37 but the stipulation must be in the form prescribed by the court ;3* and the items of the account must be fully and distinctly admitted. 3' *° § 26. The referee. — Where the court is authorized to ap- point a referee, it may, in its discretion, appoint one or three."*' A referee, appointed by the court, must be free from all just objections; and no person shall be so appointed, to whom all the parties object, except in an action to annul 30. Maxwell v. Cottle, 55 St. 36. McCall v. Moschocowitz, 14 Repr. 127; 25 N. Y. Supp. 635; Daly, i6; i St. Repr. 99; 10 Civ. Martin v. Windsor Hotel Co., 70 Proc. Rep. 107; Claflin v. Farmers. N. Y. lOl. & Citizens' Bank, 25 N. Y. 293; 24 31. Cochran v. Thurber, 21 St. How. i; Renouil v. Harris, 4 N. Y. Repr. 37. Super. 641 ; Bloom v. United Bene- 32. Stein v. Levy, 36 St. Repr. fit Savings & Loan Co., 81 Hun, 533; Hawkins v. Avery, 32 Barb. 120; 62 St. Repr. 657; 30 N. Y. SSI. Supp. 700; I N. Y. Annot. Cas. 26; 33. Mayor, etc. v. Genet, 4 Hun, affd., 152 N. Y. 114; Colyer v. Col- 658. yer, 24 Week. Dig. 74. 34. Forrest v. Forrest, 25 N. Y. 37. Mullin v. Kelly, 3 How. 12;, SOI. Siegel v. Held, 36 How. 506. 35. Lawless v. O'Mahony, 9 Abb. 38. McAndrew v. Place, 5 Hun, (N. S.) 44; Forrest v. Forrest, 25 28s. N. Y. 501; Hawkins v. Avery, 32 39. Stebbins v. Cowles, 4 Civ. Barb, ssi; Billings v. Vanderbeck, Proc. Rep. 302; Kennedy v. Kenna, IS How. 29s; Claflin v. Farmers & 49 How. 308. Citizens' Bank, 2S N. Y. 293; 24 40. See Form No. 10. How. i; revg. 36 Barb. 540; McCall 41. Code of Civ. Proc, § I02S^ v. Moschocowitz, 14 Daly, 16; i St. first clause. Repr. 99; 10 Civ. Proc. Rep. 107. 42 LAW AND PRACTICE AS TO REFERENCES. a marriage, or for a divorce, or a separation. A judge can- not be appointed a referee, in an action brought in the court of which he is a judge, except by the written consent of the parties; and in that case he cannot receive any compensa- tion as referee.'*^ Judges of the Court of Appeals, justices of the Supreme Court, and judges of courts of record in the cities of New York, Brooklyn, and Buffalo, are prohib- ited by the Constitution from acting as referee.'*^ Clerks of courts of record in New York or Kings counties cannot be appointed.'** A person should not be appointed referee who is acting as attorney or counsel for either party in other matters, ''^ or in which the attorney for either party is acting as referee in an action in which the referee is attorney ;"** but grounds of disqualification, known to a party, may be Avaived by proceeding with the trial, after such knowledge and without objection. '•^ A referee need not reside in the county where the venue is laid;'*^ and may be authorized to sit in any county to take testimony ;*' but where the referee is appointed by a court of limited jurisdiction, he has no power to try the action outside that jurisdiction. 5° 42. Code of Civ. Proc, § 1024. v. Lewis, 9 How. i; Stebbins v. 43. Constitution, Art. VI, § 21. Brown, 65 Barb. 272. As to other disqualifications of 46. Carroll v. Lufkins, 29 Hun, judges, see Code of Civ. Proc, 17; O'Brien v. Long, 49 Hun, 80; 5§ 46-51- I N. Y. Supp. 695. 44. Code of Civ. Proc, § 90; but 47. Carroll v. Lufkins, 29 Hun, this section has been declared un- 17; Burrows v. Dickinson, 35 Hun, constitutional. Standfast v. Crotty, 492; Durant v. O'Brien, 2 How. 13 N. Y. Supp. 584. (N. S.) 313. For an instance where 45. Fortunato v. Mayor, etc., of a constitutional provision cannot be New York, 31 App. Div. 271 ; 52 waived, see Countryman v. Norton, N. Y. Supp. (86 St. Repr.) 872; 21 Hun, 17, 21. revg. 23 Misc. 82; 50 N. Y. Supp. 48. O'Brien v. Catskill Mt. R. R. 429; citing Reynolds v. Moore, i Co., 32 Hun, 636. App. Div. 105; Roosa v. Saugerties 49. O'Brien v. Catskill Mt. R. R. & W. Turnpike Co., 12 How. 297; Co., 32 Hun, 636; Newland v. West, Livermore v. Bainbridge, 14 Abb. 2 Johns. 188. (N. S.) 227; 47 How. 350; Dorlon 50. Bonner v. McPhail, 31 Barb. 106. THE ORDER OF REFERENCE; HOW REVIEWED. 43 § 27. The order of reference — The order of reference does not involve the merits, — it merely determines the mode of trial ;5' the action and parties remain in court for every pur- pose except the trial^"^ Where an order is made referring the cause without limitation, all the issues, whether of law or fact, are necessarily embraced in the reference and the referee has power to determine and report upon the whole issues;" and under a reference to hear and determine all the issues, the referee must take and state an account, if plaintiff is found to be entitled to it, 5* and in an action for dower, he may order a sale of the property if admeasurement be found impracticable.55 The order is the referee's authority to act, and he should not proceed until he is satisfied that it is entered in the proper clerk's office,'^ although it is sufificient to give the referee jurisdiction and his proceedings validity, if the order in fact exists." A certified copy of the order should be de- livered to the referee, 5* and it is proper for him to refuse to proceed without such certified copy.^' The order may direct hearings to be had in different counties for the convenience of parties and their witnesses.*" § 28. Order, how reviewed. — The Code provides that an appeal may be taken to the Appellate Division of the Su- preme Court from an order made in an action, upon notice, 51. Bryan v. Brennon, 7 How. 55. O'Dougherty v. Remington 359. Co., I St. Repr. 523. 52. Holmes v. Slocum, 6 How. 56. Bonner v. McPhail, 31 Barb. 217; Matthews v. Jones, i E. D. 106. Smith, 429. 57. Gerity v. Seegers & Guernsey 53. Renouil v. Harris, i Code Co., 163 N. Y. 119; affg. 20 App. Rep. 125; 2 Sandf. 641; 2 Code Div. 637. Rep. 71; Graves v. Blanchard, 4 58. Moffatt v. Judd, i How. 193. How. 300. 59. Gerity v. Seegers & Guernsey 54. Garczynski v. Russell, 75 Co., 163 N. Y. 119. Hun, 492; 57 St. Repr. 666; 27 60. O'Brien v. Catskill Mt. R. R. N. Y. Supp. 458. Co., 32 Hun, 636; Supreme Court 44 LAW AND PRACTICE AS TO REFERENCES. in a case where it effects a substantial right,*' and the time for such appeal is limited to thirty days after service of a copy of the order appealed from, and a written notice of the entry thereof.*^ An order granting or denying a compul- sory reference is an order affecting a substantial right and therefore directly appealable to the Appellate Division,*^ al- though the granting of such order is within the discretion of the court.** An appeal is the only method of reviewing the order. *5 No appeal can be taken from an order referring a cause after proceeding with the reference, thereby waiving the right to appeal,** nor can the order of reference be re- viewed by appeal from final judgment.*^ An order of ref- erence is not an intermediate order necessarily affecting the Rule 26; Pierce v. Voorhees, 3 can review and correct orders made How. III. by the latter whether discretionary 61. Code of Civ. Proc, § 1347, or not, provided they affect matters subd. 4. of substance." (Citing Howell v. 62. Code of Civ. Proc, § 1351. Mills, 53 N. Y. 322.) 63. Ross v. Combes, 37 N. Y. It is only in exceptional cases Super. 280; McCall v. Moschoco- where the Appellate Division will witz, I St. Repr. 99; 10 Civ. Proc. review the discretion of the Special Rep. 107; 14 Daly, 16; Martin v. Term in refusing to refer the is- Windsor Hotel Co., 10 Hun, 304; sues in a common-law action. (Al- 70 N. Y. loi ; Roslyn Heights L. & lentown Rolling Mills v. Dwyer, 26 I. Co. v. Burrowes, 22 App. Div. App. Div. loi.) 546; Central Trust Co. v. N. Y. C. 65. Elliot v. Lewis, 16 Hun, 581; & N. R. R., 42 Hun, 602; 18 Abb. Baird v. Mayor, 74 N. Y. 382; N. C. 381; Francis v. Porter, 88 Roslyn Heights L. & I. Co. v. Hun, 325. Burrowes, 22 App. Div. 540; 80 St. 64. Maxwell v. Cottle, 53 St. Repr. (48 N. Y. Supp.) 15. Repr. 127; 25 N. Y. Supp. 635; 66. Ubsdell v. Root, i Hilt. 173; Martin v. Windsor Hotel Co., 70 3 Abb. 142; Claflin v. Farmers & N. Y. loi; Godfrey v. Williams- Citizens' Bank, 25 N. Y. 293. burgh Ins. Co., 12 Abb. (N. S.) 67. McCall v. Moschocowitz, 10 250. In Martin v. Windsor Hotel Civ. Proc. Rep. 107; i St. Repr. 99; Co., Judge Church said: "The 14 Daly, 16; Roslyn Heights L. & General and Special Terms of the I. Co. v. Burrowes, 22 App. Div. Supreme Court are but different 540; 82 St. Repr. (48 N. Y. Supp.) parts of the same court, of equal 15. original jurisdiction, and the former THE ORDER OF REFERENCE; HOW REVIEWED. 45 judgment, within the meaning of section 1316 of the Code.^^ Where an action is referable, whether it shall be referred or not is a matter of discretion, and an order granting or refus- ing a reference is not reviewable by the Court of Appeals^^ and the determination at Special Term of the City Court of New York, upon a motion for reference, is reviewable by the General Term of that court, but not further appealable.'''' On the other hand, an order which directs a reference in a case in which a reference is not authorized by law is appealable.^' 68. Id. In Stokes v. Stokes (87 Hun, 152; 67 St. Repr. 760; 33 N. Y. Supp. 1024), which was an appeal from an order of reference, it was held, "A party may now go on un- der an intermediate order and wait until the judgment is entered in order to review the same. There can be, therefore, no waiver of a right to appeal from such inter- mediate order by going on under it. In the case at bar the party did not waive his right to appeal by going on, because that exists until the entry of judgment, and the expiration of his right to appeal from the judgment." But in Ros- lyn Heights v. Burrowes (22 App. Div. 540; 82 St. Repr. [48 N. Y. Supp.] is), which was an appeal from a judgment upon the report of a referee, with notice of an in- tention to bring up for review an order referring the action two years before, the court said: "As the defendant did not appeal from the order of reference he is concluded by it, unless the reference to it in the notice of appeal presents it for review by force of section 1316 of the Code, which provides for the review of an intermediate order, which is specified in the notice of appeal from a final judgment and necessarily affects the judgment. It is not seen that the order of refer- ence does that. * * * The order is reviewable only by appeal from it." 69. Martin v. Windsor Hotel Co., 70 N. Y. 101; Welsh V. Darragh, 52 N. Y. sgo; Harrington v. Bruce, 84 N. Y. 103. 70. Smith v. Gould, 34 Misc. 518; 103 St. Repr. (S9 N. Y. Supp.) 954. 71. Cram v. Bradford, 4 Abb. Pr. 193; Whitaker v. Desfosse, 7 Bosw. 680; Kennedy v. Shelton, i Hilt. 546; 9 Abb. I57n; Camp v. Inger- soll, 86 N. Y. 433; Thayer v. Mc- Naughton, 117 N. Y. iii; Spence v. Simis, 137 N. Y. 616; Cassidy v. McFarland, 139 N. Y. 201; Steck v. Colorado F. & I. Co., 142 N. Y. 236; 58 St. Repr. 765; Cantine v. Russell, 168 N. Y. 484. 46 LAW AND PRACTICE AS TO REFERENCES. CHAPTER VI. BRINQINQ ISSUES TO TRIAL BEFORE REFEREE. Section 29. Appointment of time and place of hearing. 30. Notice of trial. 31. Referee's oath. 32. Fees of referee. 33. Adjournments of the hearing. 34. Procuring the attendance of witnesses. 35. Presence of the referee. 36. Judgment on default or on pleadings. § 29. Appointment of time and place of hearing The fact that the court has actually made an order of reference has been held sufficient to give a referee jurisdiction to proceed with the reference;' but, the order of reference being his commission upon which his proceedings rest, he should not proceed without a certified copy of the order in his hands. ^ Upon receipt of a certified copy of the order appointing him, the referee shovild fix the time and place for the first hearing. Although it is not required that such designa- tion be put in writing, ^ it is much the better practice to do so."* If more than one referee is appointed, a majority may appoint a time and place for the trial. ' When the referee 1. People V. Central City Bank, To proceed without proof of au- 53 Barb. 412; Wheeler v. Falconer, thority is at least unwise, if not of 7 Robt. 45; Eighmy v. People, 79 doubtful propriety. A referee takes N. Y. 546; Gerity v. Seegers & thj risk that his authority may not Guernsey Co., 163 N. Y. 119. exist and possibly may subject him- 2. Bonner v. McPhail, 31 Barb, self to personal liability for his im- 106. In Gerity v. Seegers & proper or erroneous assumption of Guernsey Co., 163 N. Y. 119, 122, power." the court (in approving the Ian- 3. Stephens v. Strong, 8 How. guage of Bonner v. McPhail) said: 339. " We concur entirely in this dec- 4. Sage v. Mosher, 17 How. 367. laration, treating it as an admoni- 5. Code of Civ. Proc, § 1026. tion for the guidance of referees. THE NOTICE OF TRIAL. 47 is appointed by a court of limited jurisdiction the hearing- must be within that jurisdiction;* but the objection must be made on the trial in order to be available.' When ap- pointed by the Supreme Court, the hearings may be had in another county than that named in the complaint if per- mission therefor is given in the order,® or if the parties con- sent thereto.' § 30. Notice of trial — The trial, by a referee, of an issue of fact, or of an issue of law, must be brought on upon like notice, as where the trial is by the court without a jury."* Either party may serve notice of trial." Fourteen days' no- tice of trial must be given, if personally served;'^ and not less than sixteen days, if service be by mail.'^ Service of notice of trial by mail less than sixteen days before the time of hearing is a nullity and is void;'"* and time begins to run from the day of mailing and not from its receipt ;'5 the service is complete where the notice, properly inclosed, addressed, and postpaid, is deposited in the post-office.'* Insufficient notice may be waived by appearance and proceeding, with- out objection,'^ but judgment in default of defendant's ap- pearance cannot be rendered unless full notice is given. '^ A 6. Bonner v. McPhail, 31 Barb. 14. Walker v. Chilson, 65 Hun„ 106. 529; 20 N. Y. Supp. 527. 7. Blake v. Lyon & Fellows Mfg. 15. Van Home v. Montgomery, Co., yy N. Y. 626. S How. 238. 8. Pierce v. Voorhees, 3 How. 16. Code of Civ. Proc, § 797; in; O'Brien v. Catskill Mt. R. R. Elliot v. Kennedy, 26 How. 422; Co., 32 Hun, 636. Green v. Warren, 14 Hun, 434; 9. Newland v. West, 12 Johns. Schwartz v. Livingston, 46 St, 188. Repr. 477; 18 N. Y. Supp. 879. 10. Code of Civ. Proc, § 1018. 17. Wetter v. Schleiber, 7 Abb. 11. Williams v. Sage, I Code 92; Hart v. Small, 4 Paige, 288; Rep, (N. S.) 358; Thompson v. Catlin v. Catlin, 2 Hun, 378. Krider, 8 How. 248. 18. Mohrman v. Bush, 2 Hun, 12. Code of Civ. Proc, § 797. 674. 13. Code of Civ. Proc, § 798. 48 LAW AND PRACTICE AS TO REFERENCES. careful practitioner will not only serve notice of trial but also a copy of the referee's designation of time and place of hear- jj^g i8a j£ there are several defendants, all must have notice before the plaintiff can move the cause for trial,'' but either defendant may bring the case to trial by service of notice upon plaintifif,^" and take judgment of dismissal as to him- self.^' No particular form of notice is required by any statute or rule of court. Any form that will apprise the adverse party of the time and place of hearing is sufficient." § 31. Referee's oath. — Before proceeding with the trial, the referee should take the oath as directed by the Code, which provides as follows: "A referee, appointed as pre- scribed in either of the foregoing sections of this title, must, before proceeding to hear the testimony, be sworn faith- fully and fairly to try the issues, or to determine the ques- tions referred to him, as the case requires, and to make a just and true report, according to the best of his understand- ing. The oath may be administered by an officer specified in section eight hundred and forty-two of this act. But where all the parties, whose interests will be affected by the result, are of age, and present, in person or by attorney, they may expressly waive the referee's oath. The waiver may be made by written stipulation, or orally. If it is oral, it must be entered in the referee's minutes." ^^ If there be 18a. Sage v. Mosher, 17 How. 22. Jackson v. Brownson, 4 Cow. 367- 51- 19. Ward v. Dewey, 12 How. 193. 23. Code of Civ. Proc, § 1016. 20. Thompson v. Krider, 8 How. Section 842 of the Code provides 248. that the oath " may be taken be- 21. Gurnee v. Hoxie, 29 Barb, fore a judge, clerk, deputy clerk, or 547. A referee has power, on fail- special deputy clerk, of a court, a ure of plaintiff to appear, either on notary public, mayor, justice of the first hearing or on an adjourned peace, surrogate, special county day, to dismiss the plaintiff's com- judge, special surrogate, county plaint and action. (Morange v. clerk, deputy county clerk, special Meigs, 54 N. Y. 207.) deputy county clerk, or commis- FEES OF REFEREE. 49 an express waiver, it must be by written stipulation or an entry in the minutes,^* but may be waived by implication/^ The waiver of the referee's oath may be implied from going on with the trial without demanding that the referee be sworn ;^* but in no case where there are infant parties or where there are parties not present, in person or by attor- ney, can the referee's oath be waived/^' The failure of the referee to be sworn does not, however, afifect the validity of the judgment.^* When the papers are silent as to the fact whether the referee took the official oath, the presumption is that it was taken. ^^ § 32. Fees of referee. — A referee, in an action or special proceeding, brought in a court of record, or in a special pro- ceeding, taken as prescribed in title 12 of chapter 17 of this act, is entitled to $10 for each day spent in the business of the reference; unless at or before the com- mencement of the trial or hearing, a different rate of compen- sation is fixed, by the consent of the parties, other than those in default for failure to appear or plead, manifested by an en- try in the minutes of the referee, or otherwise in writing, or a smaller compensation is fixed by the court or judge in the sioner of deeds, within the district 174. In this case the court said: in which the officer is authorized " There can be no waiver by one to act." who is incapable of giving consent, 24. Nason v. Ludington, 56 How. or by one who is not represented 172; 8 Daly, 149. and who knows nothing of the ir- 25. Id. See also Whalen v. regularity." See also Exchange Board of Supervisors, 6 How. 278; Fire Ins. Co. v. Early, 4 Abb. N. C. Keator v. Ulster & Del. Plankroad 78; S Week. Dig. 587. Co., 7 How. 41; Ludington v. Taft, 28. Code of Civ. Proc, § 721, 10 Barb. 447. subd. 12; Katt v. Germania Fire 26. McGowan v. Newman, 4 Abb. Ins. Co., 26 Hun, 429. N. C. 80; 54 How. 4S8. 29. Hatfield v. Malcolm, 71 Hun, 27. Code of Civ. Proc, § 1016; 51, 54. Nason v. Ludington, 56 How. 172, 4 50 LAW AND PRACTICE AS TO REFERENCES. order appointing him. 3° A verbal agreement, in the presence of the referee, is not sufBcient to fix the compensation of the referee unless a memorandum of the agreement be made on his minutes at the time.^' The attorneys for the respective parties have the power to bind their clients by stipulation or agreement for referee's fees,^^ and the agreement as entered in the minutes must be definite and certain to be of avail.^^ Where two cases are tried before the referee at the same time, one-half fee should be allowed in each,^'* but where actions between the same parties in different courts and for different causes of action are referred to the same referee and tried together by him, he will be entitled to the full statutory fee in each case, in the absence of any agreement to the contrary. 35 The fact that the hearing was protracted, and held at unusual hours does not entitle the referee to more than $io per day, in the absence of a stipulation. ^^ He can- not have fees for services unless they were necessarily per- formed.37 The fees are taxable on the referee's affidavit'^ 30. Code of Civ. Proc, § 3296. v. Oneida Community, 59 Hun, 31. Townsend v. Peyser, 14 Abb. 234; 20 Civ. Proc. Rep. 167.) (N. S.) 324; 4 Daly, 556; 45 How. 34. Byrne v. Groot, 5 Law Bull. 211. 56; Colton v. Simmons, 14 Hun, 75, 32. Mark v. City of Buffalo, 7 79. In the case last cited it was N. Y. 184. held that stenographer's fees, paid 33. Chase v. James, 16 Hun, 14;^ bj' a party, cannot be allowed as a Estate of Oilman, 13 Civ. Proc. disbursement in the action. Clerk- Rep. 179; First Nat. Bank of hire is not allowable. (People v. Cooperstown v. Tamajo, 17 Hun, Continental Life Ins. Co., 15 Week. 240; afifd., 77 N. Y. 476, 478; Griggs Dig. 569.) v. Day, 135 N. Y. 469; 46 St. Repr. 35. Holmes v. Griggs Mfg. Co., 533; Brown v. Sears, 23 Misc. 559. 19 N. Y. Supp. 191; 28 Abb. N. C. But in a case where the parties and 133. their attorneys entered into a stip- 36. Matter of Bieber, 36 Misc. ulation " that the referee in this 341 ; yz N. Y. Supp. 552. action may fix the amount of his 37. Matter of Piati, 26 Misc. 434; fees without regard to the pro- 56 N. Y. Supp. 132. visions of the statute," it was held 38. Eagan v. Eagan, 51 App. sufficient to sustain the taxation of Div. 635; 64 N. Y. Supp. 836. the referee's fees as fixed. (Burt ADJOURNMENTS OF HEARING. 5 I which must show that the time spent was necessarily required. ^5 § 33. Adjournments of the hearing. — Upon the trial of an issue of fact, a referee possesses and exercises the same power as the court to grant adjournments, '*° and it is also provided that where the reference is to more than one referee, a ma- jority of those present, at a time and place appointed for the trial, may adjourn the case to a future day.'*' Where an application is made to a court or referee to adjourn a trial the payment to the adverse party of a sum not exceeding $10 or in the City Court of New York a sum not exceed- ing $5, besides the fees of his witnesses and other tax- able disbursements already made or incurred, which are rendered inefifectual by the adjournment, may be required as a condition of granting the adjournment. ■♦- The impo- sition of costs as a condition of adjournment was a prac- tice long before the Code.*^ The granting or refusing an adjournment is largely within the discretion of the referee,'*'* and the court will ' rarely interfere with that discretion. '*5 39. Matter of Piati, 26 Misc. 434; upon a trial.' The ease with which 56 N. Y. Supp. 132. parties have obtained postpone- 40. Code of Civ. Proc., § 1018. ments of hearings before referees 41. Code of Civ. Proc., § 1026. has made that form of trial so 42. Code of Civ. Proc, § 3255. tedious, burdensome, and expensive With reference to the provisions of as to bring it into disrepute with the section last cited, Mr. Baylies, litigants." in his Trial Practice (2d ed.), at 43. Sickles v. Fort, 12 Wend, page 364, says: "Unfortunately, 199; Van Rensselaer v. Bates, 18 referees seldom impose costs as a Wend. 509; Butler v. Bates, 5 Hill, condition of an adjournment, or 374; Slocum v. Watkins, i Den. require the parties to make the 631 ; Johnson v. Grey, 6 Cow. 54. proof necessary to entitle them to 44. Cooley v. Huntington, 16 a postponment of the trial. This Abb. Pr. 384; Comins v. Hetfield, is in direct violation of section 1018 80 N. Y. 261; Billings v. Vander- of the Code, which provides that beck, 15 How. 295. ' the powers conferred by this sec- 45. Cooley v. Huntington, 16 tion are exercised in like manner Abb. Pr. 384n; Langley v. Hick- and upon like terms as similar man, 3 N. Y. Super. 681. powers are exercised by the court 52 LAW AND PRACTICE AS TO REFERENCES. Nothing short of an abuse of discretion will justify the court on appeal in reversing judgment because of a refusal of an adjournment/^ and if the referee bases his refusal on want of authority the court will grant relief/' The court will not hear a motion to postpone a trial before a referee on the ground of the absence of a witness; such application must be made to the referee, and the granting or refusing thereof is within his discretion/^ but an adjournment can- not be granted on account of the intended absence of coun- sel on a pleasure trip nor because the referee desires a vaca- tion during the summer months."*' § 34. Procuring the attendance of witness A witness may be subpoenaed to attend before a referee, appointed as prescribed in either of the foregoing sections of this title, to testify, and, in a proper case, to bring with him a book, document, or other paper, as upon a trial by the court.^" A subpoena, issued out of the court, to compel the attend- ance of a witness, and, where the subpoena so requires, to compel him to bring with him a book or paper, must be served as follows: i. The original subpoena must be ex- hibited to the witness. 2. A copy of the subpoena, or a ticket containing its substance, must be delivered to him. 46. Pettee v. Pettee, 77 Hun, 595, 48. Langley v. Hickman, 3 N. Y. 598. Super. 681. 47. Packer v. French, Hill & 49. Forrest v. Forrest, 16 N. Y. Den. (Lalor's Supp.) 103. In this Super. 650. case it was held that after a cause 50. Code of Civ.- Proc, § ioi7- has been summed up, a referee By section 854 of the Code, it is may. in his discretion, postpone the provided that in some instances the hearing and receive further evi- subpoena must be issued (signed) dence at another time. See also by the referee. And this provision Ayrault v. Sackett, 17 How. S07; held especially applicable to refer- Cleaveland v. Hunter, i Wend, ees in supplementary proceedings. 104; Duguid V. Ogilvie, i Abb. (Knowles v. De Lazarre, 3 How. 145; Litch V. Brotherson, 16 Abb. [N. S.] 35; People v. Ball, 37 Hun, 384- 245.) PROCURING ATTENDANCE OF WITNESSES. 53 3. The fees, allowed by law, for traveling to, and returning from, the place where he is required to attend, and for one day's attendance, must be paid or tendered to him.5' A person shall not be compelled to produce, upon a trial or hearing, a book of account, otherwise than by an order re- quiring him to produce it, or a subpoena duces tecum. Such subpoena must be served at least five days before the day when he is required to attend. ^^^ The record of a convey- ance of real property, or any other record or document, whereof a transcript duly certified may by law be read in evidence, shall not be removed, by virtue of a subpoena duces tecum, from the office in which it is kept; except tem- porarily, by the clerk having it in custody, to a term or sitting of the court of which he is clerk; or by the officer having it in custody, to a term or sitting of a court, or a trial before a referee, held in the city or town where his office is situated. Where it is required at any other place, it may be removed, by order of the Supreme Court, or a County Court, made in court, and entered in the minutes, specifying that the production of the original, instead of a transcript, is necessary." A corporation may be required to produce a book or paper, in the same manner as a natural person, and for that purpose a subpoena duces tecum, or an 51. Code of Civ. Proc, § 852. N. C. 437), and he is also entitled Witnesses attending before a ref- to his fees for attendance on Sun- eree are entitled to the same fees day, whether he chooses to go home as where the attendance is before or remain at the place of trial, the court, to wit: fifty cents for (Muscott v. Range, 27 How. 85.) each day's attendance; and, if he 52. Code of Civ. Proc, § 867. This resides more than three miles from section further provides that the the place of attendance, to eight witness may be relieved from the cents for each mile, going to the obligations of the order or sub- place of attendance. (Code of Civ. poena upon application to the judge Proc, § 3318.) A witness served or referee, and upon such terms as with a s«bpcEna duces tecum is en- justice requires, titled to only the ordinary witness 53. Code of Civ. Proc, § 866. fees (Matter of Corwin, 6 Abb. 54 LAW AND PRACTICE AS TO REFERENCES. order, must be directed to the president or other head of the corporation, or to the officer thereof, in whose custody the book or paper is.^^* In a case specified in the last sec- tion, or where a subpoena duces tecum, or an order, made as prescribed in section 866 or section 867 of this act, requires a public officer to attend, and bring a book or paper under his control, the subpoena or order is deemed to be suffi- ciently obeyed, if the book or paper is produced by a subor- dinate officer or employee of the corporation, or in the pub- lic office, who possesses the requisite knowledge to identify it, and to testify respecting the purposes for which it is used. If the personal attendance of a particular officer of the cor- poration or public officer is required, a subpoena without a duces tecum clause must also be served upon him.^s Where a prisoner detained in jail or prison is desired as a witness, a writ of habeas corpus, for the purpose of bringing him before the court, may be issued, upon the application of a party desiring the testimony of such witness. ^^ A referee may exercise the same power as the court to compel the attendance of a witness by attachment; and to punish a witness for a contempt of court for nonattendance or refusal to be sworn or to testify.^^ § 35. Presence of the referee. — Where the reference is to more than one referee, all must meet together and hear all the allegations and proofs. 5^ If nothing appears to the con- 54. Code of Civ. Proc, § 868. 63 St. Repr. 243; 30 N. Y. Supp. 55. Code of Civ. Proc, § 869. 1053; 24 Civ. Proc. Rep. 126.) It is the duty of a person served 56. Code of Civ. Proc, §§ 2008- with a subpoena duces tecum to obey 2014. it, either personally or by a subor- 57. Code of Civ. Proc, § 1018. dinate officer possessing the requi- 58. Code of Civ. Proc, § 1026; site knowledge to testify, and vvfhen Mclnroy v. Benedict, II Johns. 402; he does so in person his attend- Bulson v. Lohnes, 29 N. Y. 291; ance is not necessarily voluntary. Harris v. Norton, 7 Wend. 534; (Sebring v. Stryker, 10 Misc. 289; Jackson v. Ives, 22 Wend. 637; JUDGMENT ON DEFAULT, OR ON PLEADINGS. 55 trary on the record, it will be presumed that all the referees met and heard the parties, though only two signed the re- port." It is the duty of a referee to be always present during the examination of witnesses, as it is at all other times, dur- ing the progress of the trial.*" He cannot, at least against objection, delegate his powers to any one else;*' but it is competent for the parties to waive his presence and con- sent to the taking of the testimony by some other person.*^ § 36. Judgment on default, or on pleadings — A referee takes the place of the court, and on the trial of the cause has all the powers of the court at Special or Trial Term,*^ and has the power to dismiss the plaintiff's complaint on his fail- ure to appear, or after his appearance, or on his failure to pro- ceed with the trial, or after having given testimony, on his refusal to proceed and close his case.*'* The referee also has Morss V. Morss, 11 Barb. 510; i Proc, § 1018; Morange v. Meigs, Code Rep. (N. S.) 374; 10 N. Y. 54 N. Y. 207. Leg. Obs. 151; Townsend v. Glens 64. Morange v. Meigs, 54 N. Y. Falls Ins. Co., 10 Abb. (N. S.) 277. 207; Catlin v. Adirondack Co., 19 59. Yates v. Russell, 17 Johns. Hun, 389; affd., 8i N. Y. 379. By 462. section 822 of the Code of Civil 60. Metcalf v. Baker, 16 Abb. (N. Procedure it is provided: "Where S.) 431; Banta v. Banta, 3 Edw. the plaintifif unreasonably neglects Ch. 295. to proceed in the action against the 61. Schultz V. Whitney, 9 Abb. defendant, or one or more defend- Pr. 71; 17 Hovsr. 471. ants against whom a separate judg- 62. Metcalf v. Baker, 11 Abb. ment may be taken, the court may, (N. S.) 431 ; Schultz v. Whitney, 9 in its discretion, upon the applica- Abb. Pr. 71; 17 How. 471. In the tion of the defendant or defendants, latter case it was held that the ef- or any of them, against whom he feet of delegating the power of so neglects to proceed, dismiss the taking testimony in a case, to the complaint as against the moving referee's clerk, although with con- party or parties and render judg- sent of the parties, was to deprive ment accordingly." (See EUs- the referee of his fees, and that no worth v. Brown, 16 Hun, i ; 56 How. charge could be made for the ser- 237.) In case the dismissal of a vices of the clerk. complaint is founded upon the de- 63. Schuyler v. Smith, 51 N. Y. fault in appearance of the plaintiff, 309; 10 Am. Rep. 609; Code of Civ. the proper judgment to be entered 56 LAW AND PRACTICE AS TO REFERENCES. the power and the right, without taking any evidence, to dismiss the plaintiff's complaint, upon the motion of defend- ant because it does not state facts sufficient to constitute a cause of action ;*5 ^^d for the same reason he may render judgment for the plaintifif if the answer does not contain facts sufficient to constitute a defense. ^^ In such a case there can be no findings of fact.*^ A motion for judgment upon the pleadings may involve a motion by the opposite party for leave to amend his pleading, and whether such motion should be granted, and if so, upon what terms, will be con- sidered under the title Amendments.^^ is the dismissal of the complaint 65. Coffin v. Reynolds, 37 N. Y. and not a judgment absolute. The 640. judgment ought no more to be an 66. Schuyler v. Smith, 51 N. Y. absolute bar in such a case, than 309, 317; 10 Am. Rep. 609. in that of a nonsuit upon a trial. 67. Wood v. Lary, 124 N. Y. 81 ; (Salter v. Malcolm, 8 Duer, 596.) Eaton v. Wells, 82 N. Y. 576. 68. See § 42, post. CONDUCT OF THE TRIAL. 57 CHAPTER VII. THE TRIAL. Section 37. Conduct of the trial. 38. Swearing the witnesses. 39. Receiving the evidence. 40. Determining weight of testimony. 41. Submitting to nonsuit. 42. Amendments. 43. Motions at close of testimony. § 37. Conduct of the trial — The trial by a referee of an is- sue of fact must be conducted in like manner, and the papers to be furnished thereupon are the same and are furnished in the same manner as when the trial is by the court without a jury.' The referee having complete jurisdiction over the cause — as much so as any judge couid possess for the trial — the mode of conducting the trial must, therefore, be within the discretion of the referee so far as relates to aii questions within the ordinary discretion of a judge on the trial of a cause.^ He may determine the order of admitting proof,^ the number of witnesses to be examined on certain points,* decide whether leading questions shall be put,^ per- mit a witness to be recalled at the close of the case,^ or to hear further testimony after the case is closed.' The cause is within the control of the referee until his report is filed, or at least until delivered to the successful party for that 1. Code of Civ. Proc, § 1018. 5. Beach v. Raymond, 2 E. D. 2. Rathbun v. Ingersoll, 34 N. Y. Smith, 496; O'Neill v. Howe, 31 St. Super. 211; Palmer v. Palmer, 13 Repr. 273. How. 363. 6. Pearson v. Fiske, 2 Hilt. 146; 3. Gibson v. Pearsall, I E. D. 7 Abb. 419. Smith, 90. 7. Duguid v. Ogilvie, 3 E. D. 4. Green v. Brown, 3 Barb. 119; Smith, 527; i Abb. 145; Ayrault v. Armstrong v. Ferguson, 54 N. Y. Sackett, 17 How. 461; 9 Abb. i54n. 659. 58 LAW AND PRACTICE AS TO REFERENCES. purpose; and as long as he has control of the cause he may open it for further hearing and receive evidence on any question.^ But where a referee reopens a case for further hearing he may impose terms as to costs of the motion to open the case and further attendance before him and the expense of taking such further testimony.' A referee has no power to refuse to proceed upon the ground that the order of reference was improvidently or ir- rei^ularly granted.'" A defendant cannot object to proceed- ing before a referee on the ground that the court had no right to refer the case — his only remedy in that respect is by appeal from the order,'' nor can he object to proceeding to trial upon the ground that other persons who are neces- sary parties have not been served with process.'^ Parties brought in after the trial has begun cannot be compelled to accept the referee or the evidence already taken; they have 8. Schermerhorn v. Devlin, I Code Rep. 28; Delafield v. De Grauw, 9 Bosw. 2; affd., 3 Keyes, 467; Fell V. N. Y. Locomotive Works, 20 St. Repr. 577; 3 N. Y. Supp. 381; Fielden v. Lahens, 2 Abb. Ct. App. Dec. iii; 3 Trans. App. 218; 6 Abb. (N. S.) 341; Dow V. Darragh, 42 N. Y. Super. 80; Moisen v. Kloster, 114 N. Y. 638; 2 Silv. 373; 24 St. Repr. 553; Ayrault V. Sackett, 17 How. Pr. 461; affd., id. 507; Cleveland v. Hunter, i Wend. 104; Kissam v. Hamilton, 20 How. 369; Hubbell v. Alden, 4 Lans. 214; Domschke v. Met. El. Ry. Co., 148 N. Y. 337; affg. 74 Hun, 442; 57 St. Repr. 189; 26 N. Y. Supp. 840; Clegg V. N. Y. Newspaper Union, 51 Hun, 232; 21 St. Repr. 215; 4 N. Y. Supp. 280; Packer v. French, Hil! & Den. (Lalor's Supp.) 103; Decker v. O'Brien, 13 Misc. 94; 68 St. Repr. 73; 34 N. Y. Supp. 81; Loonam v. Myers, 13 Daly, 535; I St. Repr. 276; Wright v. Reusens, 133 N. Y. 298; 45 St. Repr. 83. Where a referee received proof and heard argument after a case was once closed, bnt without no- tice to all parties, such irregularity is waived by the party not notified, if, on being apprised thereof, he fails to make timely objection. (McAllister v. Case, 13 St. Repr. 141, following Fudicar v. Guardian Mut. L. Ins. Co., 62 N. Y. 392; Carroll v. Lufkins, 29 Hun. 17.) 9. Page V. Methfessel, 71 Hun, 442; 54 St. Repr. 544; 25 N. Y. Supp. 11; affd., 145 N. Y. 602; 65 St. Repr. 86.) 10. People V. Cortelyou, 36 Barb. 164. 11- Elliot V. Lewis. 16 Hun, 581. 12. Hawkins v. Avery, 32 Barb. 551- CONDUCT OF THE TRIAL. 59 a right to be present when the witnesses are sworn and ex- amined,'^ and an order appointing a new referee and pro- viding that the testimony taken before a former referee should be received by the substituted referee is unauthor- ized;'* but if the reference is proceeded with without objec- tion the irregularity is waived.'^ Ordinarily, where the whole issue is referred, it is the duty of the referee to take, state, and adjust the accounts of the parties on the basis on which by his decision he may settle their rights; for, as a portion of the issues, that is included within the reference provided for.'^ But in such a case the referee has the pozver to make a report directing the entry of an interlocutory judgment declaring the rights of the parties and directing that an accounting be had.'^ In a 13. Wood V. Swift, 8i N. Y. 31. 34- 14. Griffin v. Miner, 54 N. Y. Super. 46; Bissell v. Hamlin, 13 Abb. 22. 15. Griffin v. Miner, 54 N. Y. Super. 46; Catlin v. Catlin, 2 Hun, 378; Bloom V. Nat. United Benefit S. & L. Co., 81 Hun, 120; 62 St. Repr. 657; I N. Y. Annot. Cas. 26; 30 N. Y. Supp. 700; affd., 152 N. Y. 114. 16. Mundorff v. Mundorff, i Hun, 41; Hathaway v. Russell, 45 N. Y. Super. 538; affd., 46 id. 103; Ket- chum V. Clark, 22 Barb. 319; Man- ning V. Manning, 87 Hun, 221 ; Sey- mour V. Forest Spring Association, 45 St. Repr. S20, 527. 17. Id. In Garczynski v. Russell, 75 Hun, 492-495, in which a referee determined only a portion of the questions referred to him under an order " to hear and determine all the issues therein," the court said: " Thus the matters which were re- ferred to a referee to hear and de- termine were only partially tried, or at least but partially deter- mined. * ♦ » We know of no authority to justify a ref- eree in determining only a por- tion of the questions referred to him, and then to direct an inter- locutory judgment, and that the court appoint another referee to complete the hearing, where the whole case was referred to him by the consent of the parties. * * * It was the duty of the referee on the trial to take the proof of the re- spective parties, take an account- ing of the matters referred to, set- tle and determine the account upon the trial before him, and thus com- plete the hearing and determina- tion of the case. His report was not only informal, but incomplete. We think it was proper for the Special Term to set aside the re- port and send the case back to the same referee, so that final judgment might be entered, as was plainly contemplated by the court and par- 6o LAW AND PRACTICE AS TO REFERENCES. case where a defendant has served a written offer that if the defendant fails in his defense, the damages may be assessed at a specified sum,'^ and such offer is not accepted, and upon the trial the referee finds that the damages do not exceed the sum stated in the offer, he must ascertain and determine the expenses necessarily incurred by the defendant in preparing for the trial, which sum he is entitled to recover against plaintiff. '9 Where it appears that a complete determination of the matters in controversy cannot be had without the presence of one not a party to the action, the referee may grant leave to plaintiff to apply to the court to bring in the necessary party and direct the trial of the cause to stand over for such purpose;^" and if plaintiff neglects to make such application, the referee has the power and it is his duty to dismiss the complaint."^' Where pleadings have been amended pending ties when the reference was or- dered." In Manning v. Manning, 87 Hun, at page 223, the court, in referring to the above language in Garczyn- ski V. Russell, said: "We do not understand that case, however, to deny that a referee has the power in certain cases to report in favor of an interlocutory judgment, for in the opinion expressing the views of a majority of the court it is dis- tinctly stated that the power of the court, in a proper case, to settle an interlocutory judgment upon the report of a referee, and to appoint another referee to take the ac- counting provided for by such judgment, is not questioned." Where the report of a referee ap- pointed to hear and determine all the issues in an action makes no disposition of a counterclaim in- terposed by the defendant, and con- tains no allusion to it, although evi- dence in support thereof was given on the trial and no ruling was made dismissing it, the judgment entered upon the report cannot be sus- tained (Pinsker v. Pinsker, 44 App. Div. so; Cable Flax Mills v. Early, 72 App. Div. 213; 76 N. Y. Supp. [no St. Repr.] 191); but in a case where all the issues were referred, and upon the trial the plaintiflP submitted to a nonsuit, the referee had no power to compel 'the de- fendant to proceed with proof of a counterclaim set up in his answer and which plaintiff had denied in his reply. Albany Brass & Iron Co. V. Hoffman, 30 App. Div. 76.) 18. Code of Civ. Proc, § 736. 19. Code of Civ. Proc, § 737. 20. Peyser v. Wendt, 87 N. Y. 322. 21. Peyser v. Wendt, 87 N. Y. 322; Maher v. A. U. F. Ins. Society, 127 N. Y. 459; First Nat. Bank v. Shuler, 153 N. Y. 163, 169. SWEARING THE WITNESSES. 6l an adjournment for that purpose, it is discretionary with the referee whether he will begin the trial anew/^ and this doctrine is sanctioned by the Court of Appeals. ^^ A referee has no power to grant an extra allowance of costs; that is for the court to determine.^'' § 38. Swearing the witnesses — Where there is more than one referee appointed, either of them may administer an oath to a witness.^^ "Except as otherwise specially prescribed' in this article, when an oath is administered, the witness shall lay his hand on the gospels and express assent to the oath, and shall be according to the present practice except that the witness need not kiss the gospels."^* " The oath must be administered in the following form to a person who so desires, the laying of the hand upon the gos- pels being omitted: 'You do swear, in the presence of the ever-living God.' While so swearing he may or may not hold np his hand at his option. "^^ "A solemn declaration or affirmation, in the following form, must be administered to a person who declares that he has conscientious scruples against taking an oath, or swear- ing in any form: 'You do solemnly, sincerely, and truly, declare and affirm.' "^* " If the court or officer before which or whom a person is ofifered as a witness is satisfied that any peculiar mode of swearing, in lieu of, or in addition to laying the hand upon the gospels, is, in his opinion, more solemn and obligatory, 22. White v. Smith, i Lans. 469; 286; Pinsker v. Pinsker, 44 App. affd., 46 N. Y. 418. Div. 502. 23. White V. Smith, 46 N. Y. 418; 25. Code of Civ. Proc, § 1026. affg. I Lans. 469. 26. Code of Civ. Proc, § 845. 24. Howe V. Muir, 4 How. 252; 27. Code of Civ. Proc, § 846. Osborne v. Betts, 8 How. 31; Dode 28. Code of Civ. Proc, § 847. V. Manhattan Ry. Co., S4 St. Repr. 62 LAW AND PRACTICE AS TO REFERENCES. the court or officer may, in its or his discretion, adopt that mode of swearing the witness."^' "A person believing in a reHgion, other than the Christian, may be sworn according to the peculiar ceremonies, if any, of his religion, instead of as prescribed in sections eight hundred and forty-five and eight hundred and forty-six of this act."3° " The court or officer may examine an infant, or a person apparently of weak intellect, produced before it or him, as a witness, to ascertain his capacity and the extent of his knowl- edge; and may inquire of a person, produced as a witness, what peculiar ceremonies in swearing he deems most obliga- tory."3' "A person swearing, affirming, or declaring, in any form, where an oath is authorized by law, is lawfully sworn, and is guilty of perjury, in a case where he would be guilty of the same crime, if he had sworn by laying his hand upon the gospels."^^ The right of a referee to administer an oath is based upon an order of the court duly made and regularly entered ;" and he cannot delegate that right to any other person. ^^ It is neither necessary nor proper for a witness to be sworn more than once upon the same trial. ^^ § 39. Receiving the evidence — A trial by a referee or ref- erees being conducted in the same manner as a trial by the court,^'' the party having the right to begin a trial by the court would have the same right when before the referee,^'^ 29. Code of Civ. Proc, § 848. 34. Security Fire Ins. Co. v. 30. Code of Civ. Proc, § 849. Martin, 15 Abb. 479. 31. Code of Civ. Proc, § 850. 35. Parsons v. Suydam, 3 E. D. 32. Code of Civ. Proc, § 851. Smith, 276. 33. Bonner v. McPhail, 31 Barb. 36. Code of Civ. Proc, § 1018. 106. 37. Palmer v. Palmer, 13 How. 363. RECEIVING THE EVIDENCE. 63 although the referee, having complete jurisdiction over the cause,^^ may determine the order of admitting proof.^' The taking or refusing testimony at any time while the cause is before him, is a matter wholly within the sound discretion of the referee.'*" He may permit or refuse to allow a party before he has rested, to ask questions of a witness which were inadvertently omitted;-*' he may permit further testimony after a party has rested his case,*^ or he may refuse to do so."*^ He may receive further testimony after the summing up has commenced, ''■* or after it is concluded on both sides.*' This discretionary power also continues until the referee is ready to deliver his report,^** and he may allow a reargument be- fore making his report. ''^ The referee has no right to disre- gard the law as decided by the courts,"** and he cannot re- ceive alBdavits in proof of facts."*' It is the duty of the referee to take down all the testimony given on a reference, 5° and when incompetent evidence has been received, he has the power to strike it out afterward on motion of the adverse 38. Id. 45. Packer v. French, Hill & 39. Gibson v. Pearsall, i E. D. Den. (Lalor's Supp.) 103. Smith, 90. 46. Cleveland v. Hunter, i Wend. 40. Schermerhorn v. Devlin, i 104; Ayrault v. Sackett, 17 How. Code Rep. 28; Delafield v. De 507; Duguid v. Ogilvie, 3 E. D. Grauw, 9 Bosw. 2; affd., 3 Keyes, Smith, 527; i Abb. 145. 467; Fell V. N. Y. Locomotive 47. Litch v. Brotherson, 25 How. Works, 20 St. Repr. 577; 3 N. Y. 407; 16 Abb. 384. Supp. 381. 48. Burt V. Powis, 16 How. 289; 41. Trimble v. Stillwell, 4 E. D. Adams v. Olin, 64 Hun, 268; 46 St. Smith, 512 Repr. 336; 18 N. Y. Supp. 899. 42. Delafield v. De Grauw, 9 49. Banta v. Banta, 3 Edw. Ch. Bosw. 2; affd., 3 Keyes, 467. 295; Security Fire Ins. Co. v. Mar- 43. Fielden v. Lahens, 2 Abb. Ct. tin, 15 Abb. 479; Fenlon v. Demp- App. Dec. hi; 3 Trans. App. 218; sey, 21 Abb. N. C. 291; 22 Abb. 6 Abb. (N. S.) 341; Dow v. N. C. 114; 2 N. Y. Supp. 763- Darragh, 42 N. Y. Super. 80. 50. Estate of Azzoli, 17 St. Repr. 44. Schermerhorn v. Devlin, 1 800. Code Rep. 28. 64 LAW AND PRACTICE AS TO REFERENCES. party, if unnoticed by him at the time of its reception.^' All questions as to admissibility of evidence should be taken spe- cifically^'" and passed upon when raised.^'' A referee has no right to strike out, after the case has been submitted for his decision, evidence which has been improperly received. ^^ One of three referees before whom a cause is tried cannot be a witness on the trial, '* and a party cannot be required to call as a witness one who has become hostile to him and whom he does not vWsh to accredit by placing him on the stand. 55 If the order of reference specifies evidence to be admitted, it is error to exclude it. 5=* The question of credi- bility is solely for the referee.^s'' 51. Armstrong v. Ferguson, 54 Christopher, 5 Duer, 216. See also N. Y. 659. Berrian v. Sanford, I Hun, 625; 4 51a. Gibson v. Stetzer, 3 Hun, T. & C. 655.) 539. 53. Blashfield v. Empire State T. 52. Wagener v. Finch, 65 Barb. & T. Co., 71 Hun, 532; 24 N. Y. 493; I T. & C. I4S; Smith v. Kobbe, Supp. 1006; 54 St. Repr. 917; 147 59 Barb. 289; Lathrop v. Bramhall, N. Y. 520; Myers v. Betts, 5 Den. 3 Hun, 394; affd., 64 N. Y. 365; 81; Allen v. Way, 7 Barb. 585. Sharpe v. Freeman, 45 N. Y. Where evidence has been ad- 802; affg. 2 Lans. 171; Clussman mitted under due objection and ex- V. Merkel, 3 Bosw. 402. The ception, a referee has power to practice of referees, in receiv- strike it out on motion of the party ing testimony which is objected who oflfered it. (Kopetzky v. Met. to, without passing upon the ob- El. Ry. Co., 14 Misc. 311, nVmg Am. jection and reserving the question Bk. Note Co. v. Met. El. Ry. Co., for future action, has been strongly 63 Hun, 506; Nette v. N. Y. El. condemned by the courts, even to R. R. Co., 13 Misc. 218; Cheese- declaring such procedure to be borough v. Conover, 140 N. Y. 382.) error. (See Smith v. Kobbe, 59 54. Morss v. Morss, 11 Barb. Barb. 289; Wagener v. Finch, 65 510. Barb. 493; i T. & C. 145.) An ex- 55. Beaman v. Todd, 4 St. Repr. ception should be taken to such 84. reservation (Holden v. New York 55a. Ennis v. Ennis, 9 St. Repr. & Erie Bank, 72 N. Y. 286), or a 54. specific ruling must be called for 55b. Leach v. Kelsey, 7 Barb. at the close of the case, and an 466. exception then taken. (Brooks v. DETERMINING WEIGHT OF TESTIMONY. 65 § 40. Determining weight of testimony — It is the province of the referee to decide as to the weight of evidence given before him.s^ He is not bound to believe all the testimony given by a party to an action even when it is uncontra- dicted;" but has the right to believe a part of the testimony of any witness and reject part.^^ It is the duty of the referee, in a case where evidence is conflicting and of equal weight on both sides, and there are no circumstances to add to, or to detract from either, to decide against the party on whom the burden of proof rests ;59 and where conflicting evidence leaves the mind in doubt, it is the duty of the referee to find adversely to the party holding the afhrmative.^" He has no right to disregard the testimony of both parties, and make an independent finding, based on no testimony in the case,*' and where evidence is given by a party which is at vari- ance with an averment in his pleading, it is error for a ref- eree to disregard the evidence, and treat the averment as controlling.*^ Instruments properly in evidence in a cause may be compared by the referee, as well as by a jury, for the purpose of inferring the genuineness, or otherwise, of handwriting.^3 Where parties stipulate that the referee may inspect the premises in dispute, he may construe the testimony in the 56. Hogan v. Laimbeer, 3 Week. 59. Strong v. Place, 27 N. Y. Dig. 27; 66 N. Y. 604. Super. 385; 33 How. ii4- 57. Vandercook v. City of 60. Bradley v. McLaughlin, 8 Cohoes, 12 Week. Dig. 84. Hun, 545. 58. Stafford v. Leamey, 34 N. Y. 61. Heim v. Link, 52 N. Y. Super. 269; 43 How. 40; Chester v. Super. 547. Jumel, 2 Silv. 182; 5 N. Y. Supp. 62. Stephan v. Hughes, 22 Week. 822; 24 St. Repr. 231; Becker v. Dig. 119. Koch, 104 N. Y. 394; S St. Repr. 63. Hunt v. Lawless, 7 Abb. N. 688; President, etc. v. Phillips, 109 C. 113; affd., 47 N. Y. Super. 540, N. Y. 383; 16 St. Repr. 199. 66 LAW AND PRACTICE AS TO REFERENCES. light of his information obtained by such inspection, and no exception is available to his findings as against or without evidence;*'* but the referee cannot, in the absence of one party, inspect machinery which is the subject of the action and receive explanations in regard thereto from the other party. *5 § 41. Submitting to nonsuit. — On a hearing before ref- erees, the plaintiff may submit to a nonsuit or dismissal of his complaint, or may be nonsuited, or his complaint dis- missed, in like manner as upon a trial, at any time before the cause has been finally submitted to the referees for their decision. In which case the referees shall report according to the fact, and judgment may thereupon be perfected by the defendant.** In a case where the referee grants a mo- tion of the defendant, made at the close of the plaintiff's evidence and before the defendant has rested his case, for a dismissal of the complaint on the merits, it is equivalent to granting a nonsuit, and in order to maintain the judgment entered thereon the defendant is bound to show that there was no material question of fact in dispute, which, upon a trial by jury, should have been submitted to the jury, and that upon the undisputed evidence he was entitled to judg- ment.*^ In a case where a plaintiff submits to a nonsuit, he cannot require the defendant to proceed with the proof of a counterclaim which he has set up in his answer and which the 64. West V. Kiersted, 15 Week. 67. My^rs v. Polhemus, ^^ Hun, Dig. 549; Crouch v. Gutman, 32 587; 60 St. Repr. 518; 28 N. Y. St. Repr. 254; 10 N. Y. Supp. 275; Supp. 1025; Place v. Hayward, 117 affd., 134 N. Y. 45; 45 St. Repr. N. Y. 487; Forbes v. Chichester, 470; Blashfield v. Empire State T. 125 N. Y. 769; Raabe v. Squier, 148 & T. Co., 147 N. Y. 524, 525- N. Y. 81 ; Smith v. Pelott, 44 St. 65. Yale v. Gwinits, 4 How. 253. Repr, 242; Cowen v. Paddock, 137 66. Supreme Court Rule 30. N. Y. 191. ALLOWING AMENDMENTS. 67 plaintiff has denied in his reply.^^ The decision granting the nonsuit need not contain any findings of fact.*' § 42. Amendments. — Upon the trial of an issue of fact, the referee exercises the same power as the court, to allow amendments to the summons, or to the pleadings.''" This does not mean that the referee has the same power as the court at Special Term; it relates only to the power of the court at Trial Term.''" The court at Trial Term may, in the exercise of a sound discretion, allow the amendment of plead- ings where justice will be thereby promoted,^^ and the same discretionary powers are conferred upon referees. ^^ xhe power vested in referees to allow amendments to the sum- mons or pleadings is not exclusive of, but concurrent with the power of the court, and pending the reference, if the party chooses and the referee adjourns the case, a motion to amend may be made at a Special Term of the court.'* 68. Albany Brass & Iron Co. v. Hoffman, 30 App. Div. 76; 85 St. Repr. (51 N. Y. Supp.) 779. In this case the court said: " By section 974 of the Code, it is provided that the mode of trial of an issue of fact arising upon a counterclaim is the same as if it arose in an action for the same cause brought by the defendant against the plaintiff. If so, the defendant in such a case has a right under Rule 30 of the General Rules of Practice to sub- mit to a nonsuit. In Brown v. But- ler (58 Hun, 511), it was held that upon a trial before a referee, a de- fendant may withdraw a counter- claim in the same manner that a plaintiff may submit to a nonsuit, and that, when such withdrawal is made, it is not proper for the referee to make any adjudication upon the merits thereof." 69. Code of Civ. Proc, § 1021. 70. Code of Civ. Proc, § 1018. The power is given to the court by Code of Civ. Proc, § 723. 71. Chittenargo Cotton Co. v. Stewart, 67 Barb. 423; Niagara Co. Nat. Bank v. Lord, 33 Hun, 557, 566; Hochstetter v. Isaacs, 44 Hun. 49S; Woodruff v. Hurson, 32 Barb. SS7; Secor v. Law, 3 Trans. App. 328; Ford V. Ford, 53 Barb. 525; Melvin v. Wood, 3 Keyes, 533; Quimby v. Claflin, •J^ N. Y. 270. 72. Joslyn v. Pulver, 59 Hun, 129, 137; affd., 128 N. Y. 334. 73. Smith v. Pelott, 18 N. Y. Supp. 301 ; Smith v. Rathbun, 13 Hun, 47; Haight v. Littlefield, 71 Hun, 285; 54 St. Repr. 733; 24 N. Y. Supp. 1097; affd., 147 N. Y. 338; 69 St. Repr. 675. 74. Bullock v. Bemis, 40 Hun, 623; Sinclair v. O'Neill, i Hun, 80; 68 LAW AND PRACTICE AS TO REFERENCES. Whenever an amendment is deemed necessary by a party to protect his rights, and it is beyond the power of the ref- eree to grant it, he should request a postponement of the hearing and apply to the court at Special Term where terms and conditions may be imposed as may be necessary to pro- tect the righ,ts of the parties. '^ The amendment, if allowed, must be actually made so that the adverse party may know what and how to answer;''^ and it should be written out and inserted in its proper place in the pleading amended.''^ A referee may permit an amendment of the pleadings to conform to the proof where such amendment will not sub- stantially change the character of the action or defense,'^ and where the power to allow the amendment exists the time and manner of its exercise is within the discretion of the referee. '^ Immaterial variances between pleadings and proof may be 3 T. & C. 74. If a plaintiff neglects to apply to the court for leave to amend, pending an adjournment of a reference for that purpose, the referee may dismiss his complaint, without prejudice to the right to bring a new action. (Peyser v. Wendt, 87 N. Y. 322.) 75. Barnes v. Seligman, 55 Hun, 339. 35°; Wiley v. Bingham, 16 Hun, 106. An application for leave to amend the complaint by adding a different cause of action, pending a trial before a referee, can prop- erly be made at Special Term only. (Niagara County Bank v. Lord, 33 Hun, 557.) 76. Ballou v. Parsons, 11 Hun, 602, 604; La Chicotte v. Richmond R. & El. Co., 15 App. Div. 385. 77. Charlton v. Rose, 24 App. Div. 485; 82 St. Repr. (48 N. Y. Supp.) 1073. On granting an amendment the court or referee should, if insisted upon by the ad- verse party, direct service of a copy of the proposed amendment. (La Chicotte V. Richmond R. & El. Co., 15 App. Div. 385.) But an amend- ment allowed on a trial does not require to be served, unless such service is made a condition of the allowance; it becomes part of the record upon being allowed. (Lane V. Hayward, 28 Hun, 583.) 78. Bennett v. Lake, 47 N. Y. 93; Chapin v. Dobson, 78 N. Y. 74; Coates v. Donnell, 48 N. Y. Super. 46; Knapp V. Fowler, 18 Week. Dig. 230; 30 Hun, 512; Union Bank V. Mott, 10 Abb. 372; 18 How. 506; Dougherty v. Valloton, 38 N. Y. Super. 455. 79. McLaughlin v. Webster, 141 N. Y. 76, 84; 56 St. Repr. 541. ALLOWING AMENDMENTS. 69 disregarded.^" After the evidence is closed the referee may permit a defendant to amend his answer to conform to the proof given on the trial where the nature of the defense will not be changed thereby.*' An amendment of a complaint nominally changing the case from one for breach of con- tract to one upon a quantum meruit may properly be allowed by a referee.*^ A referee has no power at the trial to allow an amendment to a complaint so as to set up or add a new cause of action,*^ nor to an answer so as to set up a new defense.^'* While a referee has the power upon the trial to allow an amendment to pleadings,*^ " where it does not change, substantially, the claim or defense," ** and the exercise of such power is encour- aged where the difference between the allegations of the pleadings and the proofs is an immaterial variance, ^^ it should be borne in mind that " where the allegation to which the proof is directed is unproved, not in some particulars only, 80. Catlin v. Gunter, 11 N. Y. 374; Dunnigan v. Crummey, 44 Barb. 528; Hart v. Hudson, 13 N. Y. Super. 294; Cobb v. West, 11 N. Y. Super. 38; Parsons v. Suy- dam, 3 E. D. Smith, 276. 81. McLaughlin v. Webster, 141 N. Y. 76; 56 St. Repr. 541. 82. Oregon Steamship Co. v. Otis, 27 Hun, 452; Flynn v. West- mayer, 14 Civ. Proc. Rep. 130; 4 N. Y. Supp. 188. 83. Quinby v. Claflin, 13 Week. Dig. 203; Button V. Schuyler's Steam Towboat Line, 40 Hun, 422 Joslyn V. Joslyn, 9 Hun, 388 Bockes V. Lansing, 13 Hun, 38 Dexter v. Ivins, 133 N. Y. 551. 84. Union Bank v. Mott, 10 Abb. 372; 18 How. 506; 19 How. 114; Woodruff V. Hurson, 32 Barb. 557; Livermore v. Bainbridge, 14 Abb. (N. S.) 227n; Case v. Phoenix Bridge Co., 19 Civ. Proc. Rep. 373; Sternback v. Friedman, 23 Misc. 173; 50 N. Y. Supp. 1025; Seaman V. Clarke, 60 App. Div. 416; 69 N. Y. Supp. 1002; Abbott v. Meinken, 48 App. Div. 109; 62 N. Y. Supp. 660; Robeson v. Central R. R. Co. of New Jersey, 76 Hun, 444; 59 St. Repr. 180; 28 N. Y. Supp. 104; Drake v. Siebald, 81 Hun, 178; 62 St. Repr. 694; 30 N. Y. Supp. 697; Alden v. Clark, 86 Hun, 357; 67 St. Repr. 154; 33 N. Y. Supp. 454. An amendment setting up a new de- fense may properly be refused by a referee, he giving leave to defend- ant to make a motion therefor at Special Term. (Wiley v. Bingham, 16 Hun, 106.) 85. Code of Civ. Proc.; § 1018. 86. Code of Civ. Proc, § 723. 87. Code of Civ. Proc, §§ 539, 540. 70 LAW AND PRACTICE AS TO REFERENCES. but in its entire scope and meaning, it is not a case of vari- ance, * * * but a failure of proof." *^ § 43. Motions at close of testimony — A motion for dis- missal of the complaint should be made at the close of plain- tiff's case if there is a failure of proof.^' Even if the allega- tions of the complaint are proven, if no cause of action is established, the complaint may be dismissed. 5° A dismissal of the complaint is equivalent to a nonsuit,'' and a denial of the motion in a proper case is error.'^ In case of a nonsuit or dismissal of the complaint for failure of proof, no findings of fact are required. '^ It is a decision that, as matter of law, there is no evidence to sustain the complaint.'* Where a nonsuit is granted, the plaintiff should except to the decision of the referee in order to be in a position to present the ruhng for review.'s The referee may, in his discretion, reserve de- cision upon a motion to nonsuit, made at the close of plain- tiff's case, until the evidence is all submitted and then pass upon it.'* The motion for nonsuit or dismissal of the com- plaint should be made upon specific grounds which should be fully stated.'^ But a motion for nonsuit upon the whole case, 88. Code of Civ. Proc, § S4i; 93. Code of Civ. Proc, § 1021; Kelsey v. Western, 2 N. Y. 500; Ware v. Dos Passos, 162 N. Y. 281. Fay v. Grimsteed, 10 Barb. 321; 94. Scofield v. Hernandez, 47 Catlin v. Gunter, 11 N. Y. 368; 10 N. Y. 313. How. 31s; Deuel v. Spence, i Abb. 95. Van Der Lip v. Keyser, 68 237; I Abb. Ct. App. Dec. 559. N. Y. 443; Winchell v. Hicks, 18 89. Pratt v. Hull, 13 Johns. 334; N. Y. 558; Dillon v. Cockcroft, 90 Stewart v. Simpson, i Wend. 376; N. Y. 649; MuUer v. McKesson, 73 Demeyer v. Souzer, 6 Wend. 436. N. Y. 195; Ormes v. Dauchy, 82 90. Abernethy v. The Society of N. Y. 443; Backman v. Jenks, 55 the Church of the Puritans, 3 Barb. 468. Daly, I. 96. Hughes v. Griffith, 12 Week. 91. Lomer v. Meeker, 25 N. Y. Dig. 501. 361. 97. Binsse v. Wood, 37 N. Y. 92. Id.; Carpenter v. Smith, 10 526; Thayer v. Marsh, 75 N. Y. 340; Barb. 663; Foot v. Sabin, 19 Johns. Sterrett v. Third Nat. Bank of 154. Buffalo, 122 N. Y. 659; Quinlan v. MOTIONS AT CLOSE OF TESTIMONY. 7 1 made at the close of the evidence, upon the ground that plaintiff had not made out a cause of action, is sufficient where it is clear from the whole case that no cause of action is made out by the evidence.'* Motions to conform the pleadings to proof may be made at the close of testimony or at any time when the question presents itself ;'' but whenever made, the ruling should be full and unconditional,'"" and an exception taken.'"' Where a complete determination of the controversy can- not be had without the presence of other parties, the court must direct them to be brought in.'°^ A referee, however, has no such power.'"^ But when it becomes apparent from evidence upon the trial that the presence of other parties is necessary, the referee should give an opportunity for an ap- pHcation to the court to have them brought in.'""* If the plaintiff then fails to apply to the court to bring in new parties, the referee should dismiss the complaint,'°5 and if it appears that a defect of parties is pleaded, and the plea is sustained by the evidence, the referee may refuse to allow the cause to stand over, and dismiss the complaint.'"* Welch, 141 N. Y. 158; Raynor v. 103. Newman v. Marvin, 12 Hoagland, 39 N. Y. Super. 11; Bel- Hun, 236. knap V. Seeley, 14 N. Y. 143. 104. Pondir v. N. Y., L. E. & W. 98. Winslow v. Bliss, 3 Lans. R. R. Co., 72 Hun, 384; 55 St. Repr, 220. 63; Sherman v. Parish, 53 N. Y. 483; 99. Code of Civ. Proc, § 723. Peyser v. Wendt, 87 N. Y. 322. 100. Knapp v. Fowler, 26 Hun, 105. Peyser v. Wendt, 87 N. Y. 200. 322- 101. Quimby v. Claflin, 77 N. Y. 106. Pondir v. N. Y., L. E. & W. 270; Van Der Lip v. Keyser, 68 R. R. Co., 72 Hun, 384; 55 St. Repr. N. Y. 443. 63. 102. Code of Civ. Proc, § 452. 72 LAW AND PRACTICE AS TO REFERENCES. CHAPTER VIII. SUBMISSION OF THE CASE AND PROCEEDINGS BEFORE REPORT. Section 44. How case submitted. 45. Deatli of party or transfer of interest. 46. Death of referee. 47. Discussion of the case with one of the parties, and other improprieties. 48. Terminating the reference for failure to file or deliver the report. § 44. How case submitted — It is customary to submit a case tried before a referee, upon written briefs, in addition to oral arguments. The statute formerly required the case to be submitted upon written requests to the referee to find upon specific questions of fact and of law, but these pro- visions have been repealed and requests to find are no longer necessary' or proper.^ Time may be given and extended by the referee for counsel to submit briefs, and his discretion in that respect will not be interfered with by the court.^ As shown under a former section,"* the referee has a discretionary power to reopen a case, after submission, for the purpose of receiving further testimony,^ and he may impose costs for 1. See Code of Civil Proc, 4. Ante, I 37. former § 1023, repealed by L. 1894, 5. Schermerhorn v. Devlin, i ch. 688, and former § 993, repealed Code Rep. 28; Delafield v. "De by L. 189s, ch. 946. Grauw, 9 Bosw. 2; afifd., 3 Keyes, 2. Zorkowski v. Astor, 13 Misc. 467; Fell v. New York Locomotive 507; 34 N. Y. Supp. 948; Lazarus Works, 20 St. Repr. 577; 3 N. Y. V. Met. El. Ry. Co., 145 N. Y. 581; Supp. 381; Fielden v. Lahens, 2 40 N. E. Repr. 240; Matchett v. Abb. Ct. App. Dec. iii; 3 Trans. Lindberg, 2 App. Div. 340; 37 N. Y. App. 218; 6 Abb. (N. S.) 341; Dow Supp. 854; Raabe v. Squier, 148 v. Darragh, 42 N. Y. Super. 80; N. Y. 81; 42 N. E. Repr. 516. Moissen v. Kloster, 114 N. Y. 638; 3. Morrison v. Lawrence, 2 How. 2 Silv. 373; 24 St. Repr. 553; Ay- (N. S.) 72. rault v. Sackett, 17 How. 46i;affd., DEATH OF PARTY OR TRANSFER OF INTEREST. 73 granting the favor.* He may open the case for reargument,' and he may call the attorneys for both parties before him whenever he may desire their assistance in regard to the case, but in all cases the opposing party or his counsel should be present.* § 45. Death of party or transfer of interest. — "An action does not abate by any event if the cause of action survives or continues." ' id. 507; Cleveland v. Hunter, i Wend. 104; Kissam v. Hamilton, 20 How. 369; Hubbell v. Alden, 4 Lans. 214; Domschke v. Met. El. Ry. Co., 148 N. Y. 337; affg. 74 Hun, 442; 57 St. Repr. 189; 26 N. Y. Supp. 840; Clegg V. New York Newspaper Union, 51 Hun, 232; 21 St. Repr. 215; 4 N. Y. Supp. 280; Packer v. French, Hill & Den. (Lalor's Supp.) 103; Decker v. O'Brien, 13 Misc. 94; 68 St. Repr. TV, 34 N. Y. Supp. 81; Loonam v. Myers, 13 Daly, 535; I St. Repr. 276; Wright V. Reusens, 133 N. Y. 298; 45 St. Repr. 83. If a referee receives proof after a case is once closed, but without notice to all parties, such proceeding is irregu- lar. The irregularity may be waived by the party not receiving notice, if, on being apprised of the fact, he fails to make timely objection. (McAllister v. Case, 13 St. Repr. 141; following Fudicar v. Met. L. Ins. Co., 62 N. Y. 392; Carroll v. Lufkins, 29 Hun, 17.) 6. Page V. Methfessel, 71 Hun, 442; 54 St. Repr. 544; 25 N. Y. Supp. 11; affd., 145 N. Y. 602; 65 St. Repr. 867. 7. Litch V. Brotherson, 16 Abb. 384; 25 How. 407- 8. Townsend v. Glens Falls Ins^ Co., 10 Abb. (N. S.) 277; 33 N. Y. Super. 130. In this case the court said: "After the submission of a controversy, a referee should not consult with, nor receive any sug- gestions or advice from, any of the parties or their respective counsel, in regard to the subject-matter of the reference, or to his finding or report therein, except in the pres- ence of the opposing party or his counsel. Referees, like judges^ should avoid even the appearance or suspicion of unfairness or preju- dice in the performance of their duties, and in all cases where they deem it necessary to hear the views, of counsel, or obtain their assist- ance in regard to the case, or as to the form and substance of their report, they should exercise their undoubted power and privilege, by calling the respective counsel of both parties before them for that purpose, or request each of them to furnish a proposed formal re- port that should be made, upon the general conclusions they have reached in the cause." 9. Code of Civ. Proc, § 755- 74 LAW AND PRACTICE AS TO REFERENCES. " In case of a transfer of interest, or devolution of liabil- ity, the action may be continued, by or against the original party; unless the court directs the person to whom the in- terest is transferred, or upon whom the liability is devolved, to be substituted in the action, or joined with the original party, as the case requires." '" Application for substitution should be made by the transferee, otherwise the action must be continued in the name of the original party. '°^ " In case of the death of a sole plaintiff or a sole defend- ant, if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be con- tinued by or against his representative or successor in in- terest." " " If either party to an action dies, after an accepted offer to allow judgment to be taken, or after a verdict, report, or decision, or an interlocutory judgment, but before final judg- ment is entered, the court must enter final judgment, in the names of the original parties; unless the offer, verdict, re- port, or decision, or the interlocutory judgment is set aside." " 10. Code of Civ. Proc, § 756. 306; 2 McCarty, 146; 2 Civ. Proc. One made plaintiff as successor in Rep. 48.) interest of the original plaintiff is 12. Code of Civ. Proc, § 763. bound by his acts (Thwing v. This section does not apply in a Thwing, 9 Abb. 323; 18 How. 458), case where the cause of action and is entitled to the benefit of all abates by the death of plaintiff proceedings. (Moore v. Hamilton, (Robinson v. Covers, 138 N. Y. 44 N. Y. 666; affg. 48 Barb. 120.) 425; 52 St. Repr. 925; 30 Abb. N. C. 10a. Emmet v. Bowers, 23 How. 241; revg. 48 St. Repr. 861; 51 id. 300. 802; 20 N. Y. Supp. 571; 65 Hun, 11. Code of Civ. Proc, § 757, 562), and refers only to cases where first sentence. The provisions of this there has been no revivor under section apply to a case where a sole section 757. (Simmons v. Craig, plaintiff and a sole defendant are 43 St. Repr. 358; 17 N. Y. Supp. both dead. (Holsman v. St. John, 24; affd., 137 N. Y. 550; 50 St. Repr. 90 N. Y. 461; revg. 48 N. Y. Super. 212.) DEATH OF PARTY OR TRANSFER OF INTEREST. 75 " This title does not authorize the entry of a judgment against a party who dies before a verdict, report, or decision is' actually rendered against him. In that case the verdict, report, or decision is absolutely void." '^ In a case where a referee, before whom a case was tried, notified defendant that it was decided in his favor, and the report was dated and signed, but not filed or delivered before defendant's death, but was afterward taken up by his per- sonal representatives, and judgment entered thereon against plaintifif, it was held that under the provisions of sections 763 and 765 the judgment was improperly entered and should be vacated, since the report of the referee, though signed before the defendant died, was not " rendered " until filed or delivered to one of the parties as required by section 1019.'+ The proceedings of a reference are not invalidated, nor the order of reference superseded by the death of a party and the substitution of his successor;'^ but when the sub- stitution is made, the parties are entitled to the benefits of proceedings already had and the reference should proceed 13. Code of Civ. Proc, § 765. Code of Civil Procedure (§§ 763, 14. Clark v. Pemberton, 64 App. 765, loio, 1022)." The findings of Div. 416; 72 N. Y. Supp. 232; appeal fact and conclusions of law signed dismissed, 169 N. Y. 594. In Adams after the death of the defendant V. Nellis (59 How. 385), Tappan, were held void, and such findings J., said: "The 'decision' intended and conclusions and the judgment by this section is the written find- entered thereon were set aside, ings of fact and the conclusions of (Citing Thomas v. Tanner, 14 How. law, and the direction which is the 426; Kissam v. Hamilton, 20 How. authority for the final judgment to 368; Sands v. Church, 6 N. Y. 347; be entered, and must constitute Shearman v. Justice, 22 How. 241; part of the judgment-roll. An Loeschick v. Addison, 3 Robt. 332; opinion stating the conclusions of Ayrault v. Sackett, 17 How. 507; the court upon the facts and law, Chamberlain v. Dempsey, 14 Abb. with the reasons and authority 241.) therefor, and directing findings and 15. Chittenango Cotton Co. v. conclusions to be drawn up and Stewart, 67 Barb. 423; Comins v. signed, is not the decision referred Hetfield, 12 Hun, 375. to in the sections quoted from the 76 LAW AND PRACTICE AS TO REFERENCES. as if no death had occurred.'* As a general rule, the death of a party operates as the vacation of the power of his at- torney, and if it becomes necessary to take any steps to afifect the rights of representatives, they must first be brought in.'^ § 46. Death of referee — The death of a sole referee before making his report ends the reference; a new referee, how- ever, may be appointed if the cause is a referable one.'* Upon the death of two of the three referees appointed, the order of reference will, as a matter of course, be vacated.'' But upon the death of one of three referees, after the cause 16. Moore v. Hamilton, 48 Barb. 720; affd., 44 N. Y. 666. In making an application to the court for sub- stitution and revivor after the death of a party, the affidavits or petition should show that the action is pending before a referee; and the order granting the motion should also " refer to the fact that the action is before a referee and ex- pressly order that this action and the proceedings therein do stand revived against the said and • , executors, as aforesaid, as defendants herein; and that said referee continue the matters and testimony before him at the very point where it was broken off by death, and with the same force and effect as though there had been no death, and as having reference simply to change of name of parties." (Edwards on Referees [i860], p. 815.) 17. Adams v. Nellis, S9 How. 385. 18. Devlin v. Mayor, 62 How. 163; Maybee v. Maybee, 6 N. Y. Supp. 575; 22 Abb. N. C. 465. In the latter case, which was a motion to appoint a successor to a de- ceased referee who had partly per- formed his duty, the court said: " It is not doubted that the court has power to appoint another ref- eree in the place of one deceased. The only suggestion now made is that the new referee cannot report under oath the facts required to be set out by the section of the Code referred to on the argument. (§ 1022.) But a new referee can state on information and belief, what was done by his predecessor, and thus sufficiently comply with the requirement, and save the par- ties the expense, trouble, and pos- sible loss of a new proceeding. Motion granted and order signed." 19. Emmet v. Bowers, 23 How. 300. "to prevent a failure of a ref- erence by reason of the death of one of the referees, a clause was inserted in the order of reference, as follows: "If either of the ref- erees should die, or from any cause be unable or unwilling to act, the trial shall then proceed before a single referee, and the referee who was supernumerary shall be dis- charged." (Devlin v. Mayor, 62 How. 260.) IMPROPER DISCUSSION OF CASE WITH PARTY. 'JJ has been tried and a report made, the survivors may settle the case on appeal from the judgment entered.''" In case of the death of one of three referees before decision, the parties may stipulate that the two surviving referees may render a decision and sign findings, etc., with the same effect as the three referees originally appointed might have done.^°* Upon the death of a sole- referee, after the cause has been tried and the report signed, the successful party may pro- ceed to enter judgment on the report in the same manner as if the referee were still living.^' When a successor is to be appointed, the application therefor must be made to the court, under the provisions of Rule 37 of the General Rules of Practice.^^ § 47. Discussion of the case with one of the parties, and other improprieties. — Reference has already been made in this chapter to the fact that all discussions of the case should be in the presence of all the parties.^^ It has been held suf- ficient ground for setting aside a report that the referee re- ceived explanations in regard to certain machinery which was the subject of the action, from the witnesses of one party, in the absence and without the consent of the other ;^'* also where the referee had repeated conversations with the attorneys for the respective parties, in the absence of the other, in relation to the questions pending before him;''^ also where the referee assured defendant that he should decide in his favor, and received his fees, and afterward suspended his decision, then assured the other party that the decision 20. Westbrook v. Dubois, 3 How. 22. Brady v. Kennedy, 65 App. 26. Div. 190; 72 N. Y. Supp. 507. 20a. Beds v. Met. El. Ry. Co., 23. Ante, § 44. IS N. Y. Supp. 15s; 37 St. Repr. 24. Yale v. Gwinits, 4 How. 253. 608. 25. Dorian v. Lewis, 9 How. i. 21. Juliand v. Grant, 34 How. 132. 78 LAW AND PRACTICE AS TO REFERENCES. would be for him, and finally promised both parties that he would examine the case.^^ If the referee, in the absence of one party, advises the other to compromise, suggesting- terms, his report should be set aside.^^ So, where circum- stances are shown which are calculated to create a suspicion that the referee may have been improperly influenced.'^* A referee who had agreed for a lien upon the judgment to se- cure part of his fees was held disqualified from settling the case.^5 A request by a referee, after the submission of the cause, to have the parties fix his fees at a sum in excess of the statutory rate, and a subsequent delivery of his report in favor of the party who had expressed a willingness to pay such sum, upon the same being secured to the referee by bond and mortgage, was held to be misconduct, for which the report should be set aside. 3° Actual corruption is not necessary to found a motion to set aside a referee's report for misconduct, but the question is, whether the fairness of his decision is justly questioned; and any indiscreet action on his part, from which improper inferences can be drawn, such as changing his decision after a dispute in regard to fees, is sufficient. 3' Charges on which a motion to set aside a referee's report for improper conduct with the successful attorney is based, must be affirmatively proven.^^ It has also been held, in a case where a referee accepted a retainer from one of the parties to an action pending before him, to 26. Roosa V. Saugerties & Wood- 29. Leonard v. Mulry, 5 Month, stock Turnpike Co., 12 How. 297. Law Bull. 24. 27. Livermore v. Bainbridge, 44 30. Greenwood v. Marvin, 29 How. 357; affd., 14 Abb. (N. S.) Hun, 99. 227; appeal dismissed, 56 N. Y. 72; 31. Reynolds v. Moore, I App. 47 How. 354; 15 Abb. (N. S.) 436. Div. 105; 72 St. Repr. 225; 37 N. Y. 28. Harlem Bank v. Todd, 4 Supp. 72; revg. 14 Misc. 571. Week. Dig. 64. 33. Gray v. Fisk, 12 Abb. (N. S.) 213; 42 How. 135. IMPROPER DISCUSSION OF CASE WITH PARTY. 79 prosecute an action for such party, that such act was suffi- cient to set aside the referee's report in favor of the party.'s^ Unsuccessful importunities for poHtical favors from a de- feated party, giving rise to a presumption of prejudice against such party, have also been held sufficient grounds for setting aside the referee's report.^'* 33. Stebbins v. Brown, 65 Barb. 272. 34. Burrows v. Dickinson, 35 Hun, 492. In several of the cases cited un- der section 47, above, the courts have referred to a possible criminal liability in connection with im- proper acts for which a report may be set aside. The sections of the Penal Code under which criminal liability is possible are as follows: § 71. Bribery of a judicial officer.— A person who gives or oflfers, or causes to be given or offered, a bribe, or any money, property, or value of any kind, or any promise or agreement therefor, to a judicial officer, juror, referee, arbitrator, appraiser or assessor, or other person authorized by law to hear or determine any question, matter, case, proceeding, or contro- versy, with intent to influence his action, vote, opinion, or decision thereupon, is punishable by im- prisonment for not more than ten years, or by a fine of not more than five thousand dollars, or both. § 73. Juror, etc., proxnising verdict — A juror or a person drawn or summoned to attend as a juror, or a person chosen arbi- trator, or appointed referee, who either: I. Makes any promise or agree- ment to give a verdict, judgment, report, award, or decision, for or against any party; or 2. Willfully receives any com- munication, book, paper, instru- ment, or information, relating to a cause or matter pending before him, except according to the regu- lar course of proceeding upon the trial or hearing of that cause or matter; is guilty of a misdemeanor. § 74. Juror, etc., accepting bribes — A juror, referee, arbi- trator, appraiser, or assessor, or other person authorized by law to hear or determine any question, matter, cause, controversy, or pro- ceeding, who asks, receives, or agrees to receive, any money, prop- erty, or value of any kind, or any promise or agreement therefor, upon any agreement or under- standing that his vote, opinion, action, judgment or decision, shall be influenced thereby, is punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or both. § 75. Embracery — A person who influences or attempts to influence improperly, a juror in a civil or criminal action or proceeding, or one drawn or summoned to attend as such juror, or one chosen as an arbitrator, or appointed as a ref- eree, in respect to his verdict, judg- ment, report, award, or decision in any cause or matter pending, or about to be brought before him, in uny case, or in any manner not included in the last two sections, is. guilty of a misdemeanor. ■So LAW AND PRACTICE AS TO REFERENCES. § 48. Terminating the reference for failure to file or deliver the report. — Upon the trial, by a referee, of an issue of fact, or an issue of law, or where a reference is made as prescribed in section 1015 of this act, the referee's written report must be either filed with the clerk or delivered to the attorney for one of the parties within sixty days from the time when the cause or matter is finally submitted; otherwise either party may, before it is filed or delivered, serve a notice upon the attorney for the adverse party that he elects to end the ref- erence. In such a case, the action must thenceforth proceed as if the reference had not been directed, and the referee is not entitled to any fees.^s To prevent the termination of a reference by notice, the report must be actually delivered to the attorney for one of the parties or filed with the clerk " within sixty days from the time the cause was finally submitted." An ofifer by a referee to deliver his report to the successful party on pay- ment of his fees within the time limited, is not equivalent to a delivery. 3^ A case is finally submitted when the case is closed, and the referee is authorized to proceed imme- diately to consider and determine the case;^'' but if briefs are to be submitted there is no submission till the time fixed for handing them in has passed. ^^ The time cannot be ex- tended by an order of the court or a judge ;3' but may be by stipulation of the parties, ■*" or by oral agreement before 35. Code of Civ. Proc, § 1019. 37. Gregory v. Cryder, 10 Abb. 36. Little V. Lynch, 99 N. Y. 112; (N. S.) 289. revg. 34 Hun, 396; 6 Civ. Proc. 38. Morrison v. Lawrence, 2 Rep. 418; I How. (U. S.) 95 (see How. (N. S.) 72- also S. C, 5 Civ. Proc. Rep. 216; 39. Gregory v. Cryder, 10 Abb. 67 How. i); Phipps v. Carman, 23 (N. S.) 289. Hun, 150; affd., 84 N. Y. 650; 40. Richards v. Bloom, 5 Hun, Bishop V. Bishop, 30 Abb. N. C. 182. 296; 24 N. Y. Supp. 888. TERMINATING THE REFERENCE. 8l the referee.''' Where the time is extended for a definite period and the referee fails to deHver his report within the time so fixed, the right to terminate the reference is not lost."'' Where time is extended indefinitely, the reference cannot be terminated at the election of a party.'*^ The rem- edy in such a case is to serve notice upon the referee and the adverse party, that unless the report is made within a reasonable time specified, the reference will be deemed ter- minated.*'* Where a referee, within sixty days after the sub- mission of a case to him, notified the parties that he had made a report in favor of plaintift', and at defendant's re- c|uest, and by reason of a proposition for a settlement the plaintiff failed to take up the report within the sixty days, the defendant was not permitted to take advantage of his own act and terminate the reference. '♦s A report, though made more than sixty days after the cause is finally sub- mitted, is not void, if neither party has made any effort to terminate the reference;'*^ and if a report is actually delivered, although more than sixty days have expired since the date of submission of the case, a notice electing to terminate the reference served thereafter is nugatory.'^' The statute pre- scribes the mode for terminating the reference upon failure 41. Ballou V. Parsons, 55 N. Y. 45. Dwyer v. Hoffman, 39 Hun, 673; affg. 52 How. 164; 67 Barb. 19. 360; affd., 102 N. Y. 725. 42. Patterson v. Knapp, 83 Hun, 46. Mantles v. Myle, 26 How. 492. 409; Foster v. Bryan, 16 Abb. 396; 43. Ballou V. Parsons, 55 N. Y. 26 How. 164; Lampman v. Smith, 673; affg. 52 How. 164; 67 Barb. 19; 17 Civ. Proc. Rep. 19; 7 N. Y. Sproul V. Star Co., 45 App. Div. Supp. 922; Livingston v. Gidney, 57S; 61 N. Y. Supp. 404; Gill v. 25 How. Pr. i. Clark, 31 Misc. 337; 65 N. Y. Supp. 47. O'Neill v. Howe, 16 Daly, 406. 181; 31 St. Repr. 272; 9 N. Y. Supp. 44. Ballou v. Parsons, 55 N. Y. 746; Foster v. Bryan, 16 Abb. 396; 673; Gill V. Clark, 31 Misc. 337; 26 How. 164; Mantles v. Myle, 26 Livingston v. Gidney, 25 How. I. How. 409. 6 82 LAW AND PRACTICE AS TO REFERENCES. of the referee to deliver or file his report.''^ There is no statutory provision fixing or prescribing the form of the no- tice, but any notice distinctly giving the opposite party in- formation that the party serving the notice has elected to terminate the reference for the delay in reporting, is suffi- cient.*" Even service of notice of trial at circuit has been held sufficient. 5° Although the statute provides that " either party may " serve the notice, a party who has appeared by attorney cannot appear on the record in person, and if notice is signed by a " party " while he has an attorney, it may be disregarded.^' In case a report is filed after a notice terminating the ref- erence has been served, the remedy is to move at Special Term, on affidavits setting forth all the facts, showing the nature of the reference, the date of the submission of the 48. Code of Civ. Proc, § lOlp. referee) was without authority of 49. Gregory v. Cryder, lo Abb. law and void, as much as the ren- (N. S.) 289. In this case the notice dition of a judgment by a justice was as follows: "You will, please, of the peace more than four days take notice that the defendant in after the submission of the case to this action will proceed therein as him. The judgment entered upon if no reference had been ordered the report would not. like the judg- therein.'' Subsequently, at request ment of the justice, be void, for the of plaintifif's attorney, the referee reason that it is legally regarded delivered his report. Defendant's as a judgment rendered by the motion to set the report aside was court; and the court having gen- denied and the order denying such eral jurisdiction to determine the motion affirmed by the General case by final judgment, such judg- Term. On appeal to the Court of ment, however erroneous, is valid Appeals, Grover, J., said: "The until set aside or reversed. * * * form of the notice to be served by The order appealed from must be the party intending to end the ref- reversed, with costs, and an order erence is not prescribed by statute, entered granting the motion of the Any notice, therefore, distinctly defendant to set aside the report." giving the opposite party informa- 50. Livingston v. Gidney, 25 tion that the party serving has How. i. elected to end the reference, is suf- 51. Halsey v. Carter, 29 N. Y. ficient. * * * -phe subsequent Super. 535. delivery of the report by him (the TERMINATING THE REFERENCE. 83 case to the referee, the failure of the referee to file or de- liver his report within the sixty days, the date of service of the notice terminating the reference, with a copy thereof, and the subsequent filing or delivery of the report, for an order setting aside the report and directing its removal from the files. This motion may be opposed in the usual man- ner upon ai^davits showing a different state of facts, or as the case may be. 84 LAW AND PRACTICE AS TO REFERENCES. CHAPTER IX. THE REFEREE'S REPORT. Section 49. The report; in general. 50. Form and contents; generally. 51. Form and contents; must state separately the facts found and conclusions of law. 52. Form and contents; directing judgment and awarding costs. 53. Form and contents; not to authorize increased costs. 54. Report of referee on demurrer. 55. Filing or delivering the report. 56. When judicial functions cease. § 49. The report; in general — The first step after a cause has been submitted to a referee or referees is to make an examination of the issues and the proofs produced before him or them, for the purpose of determining the questions submitted and the preparation of a report thereon. In a case where there are several referees, all must be present, not only to hear the proofs and allegations of the parties, but in their deliberations upon the evidence, and in making up their report.' At such meeting the majority must reach a substantial agreement upon the questions sub- mitted,^ and a majority of the referees may sign the report.^ A report drawn by the attorney for the successful party and signed by two of the referees, separately, without consultation with the third, is irregular and will be set aside;'* but where a 1. Code of Civ. Proc, § 1026; necessary to be embodied in the Fielden v. Lahens, 14 Abb. 48. report at such conference, or when 2. Townsend v. Glens Falls Ins. they are together." See also Tilcln- Co., ID Abb. (N. S.) 277; 33 N. Y. roy v. Benedict, 11 Johns. 402; Super. 130. In this case the court Morss v. Morss, II Barb. 510; said: "In all reference cases there Brower v. Kingsley, i Johns. Cas. must be a conference of all the 334. referees; there must be a substan- 3. Code of Civ. Proc, § 1026. tial conclusion agreed to between 4. Townsend v. Glens Falls Ins. at least two of them upon the sev- Co., 10 Abb. (N. S.) 277; 33 N. Y. eral questions of law and fact Super. 130. THE referee's REPORT; IN GENERAL. 85 report was agreed upon by two referees, in the presence of the third, who dissented from their conclusion, and who stated to the others that they could sign the report without him, and the report was signed the next day by the two who had agreed, it was held good.^ The cause is within the absolute power and control of the referee until the report is signed and delivered and he may alter it as he pleases; but he should not advise either party of his decision until his report is signed and ready for delivery.^ After a report is made and signed the referee has no power to alter or amend it.7 Where double, treble, or other increased damages are authorized, the report of the referee must specify the sum awarded as single damages, and direct judgment for the increased damages.^ In an action for a penalty or forfeiture, not exceeding a specified sum, the referee before whom the issues are tried may award to the plaintiff the whole sum, or such a part thereof as he deems proportionate to the ofifense.' In an action of replevin the report of the referee must fix the damages, if any; also the value of the chattel.'" 5. Clark v. Fraser, i How. 98. report, together with notice of the 6. Ayrault v. Sackett, 17 How. fact to the party entitled to it, are 461; 9 Abb. iS4n; afTd., 17 How. the definitive acts which close his 507. See also Kissam v. Hamilton, (the referee's) judicial authority in 20 How. 369. the case; or, rather, they are the 7. Ayrault v. Sackett, 17 How. acts which preclude his opening the S07; Shearman v. Justice, 22 How. case for further evidence or con- 241; Niles V. Price, 23 How. 473; sideration." Lefler v. Field, 33 How. 38s; 42 in Waters v. Shepherd (14 Hun, How. 420; 47 N. Y. 407; Cooper v. ^23), where a report was signed Bowles, 42 Barb. 87; 28 How. 10; ^^^ ^^^^^^^ notif^^i, the court said: 18 Abb. 442; Barne v. Neuss, 14 « t^ 1 ^ j ^t.- j u _. .,, „! It was a completed thmg and be- yond the power of the referee to Week. Dig. 522; Waters v. Shep- herd, 14 Hun, 223; Quackenbush V. . , , , , T t. -- xj „<. r-_„;„ ., withhold or change it after the Johnson, 55 How. 90; Craig v. ^ Craig, 66 Hun, 452; SO St. Repr. service of the notice." 461; 21 N. Y. Supp. 241; Smith v. ^- Code of Civ. Proc, § 1020. Trustees of Brookhaven, 25 Misc. 9- Code of Civ. Proc, § 1899. 117; 53 N. Y. Supp. 1075. 10. Code of Civ. Proc, § 1726. In Ayrault v. Sackett (17 How. See also § 1727. 507), it was held that " signing the 86 LAW AND PRACTICE AS TO REFERENCES. § 50. Form and contents; generally — The referee's report should contain the title of the cause referred; it should be addressed to the court making the appointment; it should recite the substance of the order of reference and state the appearances before him." It must state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon, which decision so filed shall form part of the judgment-roll. Where costs are in the discretion of the court, the referee's report must award or deny costs; and if it awards costs, it must designate the party to whom the costs to be taxed are awarded.'^ The amendment of 1894 did away with the absolute requirement of findings ;'3 but the amendment of 1903* restored the section as it was prior to the amendment of 1894, and the referee's report must state separately his findings of fact and conclusions of law."* No findings are necessary where the complaint is dismissed before the introduction of evidence or where judgment is rendered on the pleadings ;'5 but in every case where evi- dence is given upon the trial, findings of fact and conclu- sions of law are necessary, as well as a direction for judg- ment.'^ Under the amendment of 1894, a referee was permitted to state separately the facts found and conclusions of law, or file a decision stating concisely the grounds on 11. 3 Wait's Practice, 310. 136; Martin v. Smith, 53 N. Y. 12. Code of Civ. Proc, § 1022, Super. 277; Eaton v. Wells, 82 N. as amended by L. 1903, ch. 85. Y. 576; Wright v. Chapin, 74 Hun, 13. Bliss' Code (5th ed.), p. 521; Lugar v. Byrnes, 29 Abb. N. C. 1903, note following § 1022. 280. 14. Code of Civ. Proc, § 1022, 16. Wood v. Lary, 124 N. Y. 83; as amended by L. 1903, ch. 85. 3S St. Repr. 53; 20 Civ. Proc. Rep. 15. Wood V. Lary, 124 N. Y. 83; 136; Wright v. Chapin, 74 Hun, 35 St. Repr, 53; 20 Civ. Proc. Rep. 521. * In effect September i, 1903. FORM AND CONTENTS OF REPORT. 87 which the issues were decided.'' A report under the latter provision was termed a " short decision " or " short-form decision," and in a number of cases reported, mere memo- randum opinions were delivered, upon which attorneys erro- 17. Code of Civ. Proc, § 1022 (amendment of 1894). By the amendments of 1894 and 1895, the section provided: "The decision of the court or the report of a referee upon the trial of the whole issues of fact may state separately the facts found and the conclusions of law and direct the judgment to be entered thereon, or the court or referee may file a decision stating concisely the grounds upon which the issues have been decided, and direct the judgment to be issued thereon, which decision, so filed, shall form part of the judgment- roll. In an action where the costs are in the discretion of the court, the decision or report must award or deny costs, and if it awards costs it must designate the party to whom the costs to be taxed are awarded. Whenever judgment is entered on a decision which does not state separately the facts found, the defeated party may file an ex- ception to such decision, in which case, on an appeal from the judg- ment entered thereon upon a case containing exceptions, the Appel- late Division of the Supreme Court shall review all questions of fact and of law, and may either modify or affirm the judgment or order ap- pealed from, award a new trial, or grant to either party the judgment which the facts warrant." (Code of Civ. Proc, § 1022, as amended by L. 1894, ch. 688, and L. 1895, ch. 946.) The requirements of the section as above quoted, with respect to " stating concisely the grounds upon which the issues have been decided," are not merely formal, but relate to a matter of substance. They manifested the purpose of the Legislature, that the parties to a lawsuit which is tried by a referee or a judge without a jury, shall be informed, to some ex- tent at least, of the reasons which have led to the determination reached. ' Juries give no reasons, but judges do in some cases, and ought to be made to do so form- ally in all cases if juries were dis- pensed with. This of itself is a security of the highest value for the justice of a decision.' (Stephen's History of Criminal Law, Vol. i, p. 568.) The obligation to give these reasons either in the form of findings of fact and conclusions of law, or in a concise statement of the grounds upon which the issues have been decided, is conducive to a degree of care in the considera- tion and disposition of the cause which might not otherwise be ob- served." (Newman v. Mayer, 52 App. Div. 209; 65 N. Y. Supp. 294.) The late Justice Follett, in Shaffer V. Martin (20 App. Div. 304), writ- ing with reference to " short -form decisions," said: "It was not in- tended to relieve trial courts (ref- erees) from deciding the issues of fact and law — those upon the ex- istence of which the right or lia- bility of the litigants depends — 88 LAW AND PRACTICE AS TO REFERENCES. neously entered judgment.'* Some of these "short deci- sions " and " short-form decisions " were found too " short " to form the basis of a vahd judgment,'' and a judgment entered upon a memorandum opinion is without findings or a decision to support it.^° The workings of the provisions of the statute permitting " short-form " decisions or reports became very troublesome to the courts and dangerous to the interests of litigants and led to a restoration of the sec- tion as it was prior to the amendment of 1894, requiring that the report must state separately the facts found and and from disclosing how those is- sues were decided. This provision was not intended to relieve trial courts and referees from deter- mining the essential issues, and from disclosing, by their decisions, how the issues were determined. It is of little use to decide issues of fact or of law unless it be dis- closed how they are decided. All the evils arising from such a prac- tice cannot now be foreseen, but among them is the impossibility of determining what issues have been decided in favor of one party and against the other, in case the judg- ment is ever pleaded in bar in a subsequent action involving some of the supposed issues. Judgments, involving the title to land, arising in contests under conveyances and wills, entered on such decisions, would ultimately lead to great con- fusion." Both trial courts and referees failed to heed the warnings con- tained in the opinions as above quoted, and fell into such a degree of carelessness in rendering de- cisions which formed no basis for a valid judgment, resulting in mis- trials and reversals of judgments. that the Legislature of 1903 again amended the section by a restora- tion to its original form. (See L. 1903, ch. 85.) 18. Hall v. Beston, 13 App. Div. 116; 77 St. Repr. (43 N. Y. Supp.) 304; Reynolds v. Xxna. Life Ins. Co., 6 App. Div. 254; 39 X. Y. Supp. 885; McManus v. Palmer, 13 App. Div. 443. 19- Reynolds v. ^tna Life Ins., Co., 6 App. Div. 254; 39 N. Y. Supp. 885; Hall v. Beston, 13 App. Div. 116; 43 N. Y. Supp. 304; Shaffer v. Martin, 20 App. Div. 304; 46 N. Y. Supp. 992; Burnham v. Denike, 54 App. Div. 132; 66 N. Y. Supp. 396; Osborn v. Heyward, 40 App. Div. 78; 57 N. Y. Supp. 542; Rowlands v. Y. yi. C. A., 32 Misc. 421; 66 N. Y. Supp. 577; Newman V. Mayer. 52 App. Div. 209; 65 N. Y. Supp. 294; McManus v. Palmer, 13 App. Div. 443; Petrie v. Trus- tees of Hamilton College, 92 Hun, 81; 71 St. Repr. 804; 36 N. Y. Supp. 636. 20. Hall V. Beston, 13 App. Div. 116; 43 N. Y. Supp. 304; Reynolds V. jEtna Life Ins. Co., 6 App. Div. 254; 39 N. Y. Supp. 88s. REPORT TO STATE FACTS AND CONCLUSIONS OF LAW. 89 conclusions of law.^' In a case of an inadvertent omissioft, and the referee certifies that he has overlooked a circum- stance connected with the question submitted, and requests that the report be sent back for re-examination, the court will set aside the award and send it back for correction. ^^ § 51. Form and contents; must state separately the facts found and conclusions of law The report of the referee must state separately the facts found and the conclusions of law.^* The defeated party is entitled to a statement of all the facts found as well as the qonclusions of law, so that a proper review may be made in case of an appeal.^"* The report should contain a sufficient statement of facts to form a basis for the conclusions of law, and substantially show th^ disposition made by the referee of the specific issues in the cause, or of such of them as are embraced in his determina- tion. A mere general conclusion of indebtedness or no indebtedness is not a sufficient compliance with the pro- 21. Code of Civ. Proc, § 1022, 28 How. 395; Lefler v. Field, 33 as amended by L. 1903, ch. 85. . How. 385.) 22. Brittingham v. Stevens, I 24. Walrath v. Abbott, 85 Hun, Hall, 379. 181; Tilman v. Keane, i Abb. (N. 23. Code of Civ. Proc, § 1022. S.) 24; Ryan v. Beard, 20 How. 282. If the report does not state the In Van Slyke v. Hyatt (46 N. Y. facts and conclusions of law sepa- 263), Rapallo, J., said: " It was rately, the court will order a further doubtless the right of the plaintiff report to be made, on the applica- to have separate findings of fact tion of either party, or of its own and conclusions of law inserted by motion (Snook v. Fries, 19 Barb, the referee in his report. This 313; Parsons v. Suydam, 3 E. D. right is secured by statute, and it Smith, 276; Church v. Erben, 4 is substantial, inasmuch as these Sandf. 691; Lakin v. New York & findings and conclusions enable the Erie R. R. Co., 11 How. 412; Hulse unsuccessful party to determine V. Sherman, 13 How. 411; Van whether or not to appeal; and in Steenburgh v. Hoffman, 6 How. case he desires to appeal, they are 492), and if effect cannot be given indispensable to enable him to to such order the report, as made, frame and serve his exceptions in will be set aside. (Peck v. Yorks, due time, and to present the case 14 How. 416; Wright v. Saunders, in proper form for review." 90 LAW AND PRACTICE AS TO REFERENCES. visions of the Code, and serves none of the purposes for which it was intended.^s In other words, a statement of a conclusion of law without a finding of fact in support of it is insufficient.^^ A referee should find facts instead of reporting the evidence which may tend to establish the fact,^' and when he has reported his conclusions as to a fact, he is not called upon to find, or explain the process by which he arrived at such conclusions.^^ He is not required to report upon every issue made by the pleadings, nor upon any other facts than those which enter into and form the basis of the judgment to be entered on his report,^' and he is not required to negative in express terms any other facts. 3° In a case where there is evidence to support the allegations of either side, and the only question is to which side the referee 25. Van Slyke v. Hyatt, 46 N. Y. 259, 263; Spooner v. Le Fevre, 2 T. & C. 666; Rogers v. Beard, 20 How. 282; Tomlinson v. Mayor, 23 How. 452; Bishop V. Empire Transp. Co., z"] N. Y. Super. 15, 16; Lefler v. Field, 33 How. 385; Arm- strong V. Bicknell, 2 Lans. 216; Smith V. Devlin, 23 N. Y. 363; Buckingham v. Payne, 36 Barb. 81; Tilman v. Keane, i Abb. (N. S.) 24. If the referee states his findings of fact and conclusions of law, the rule which existed prior to the amendment of 1894, requiring the findings of fact to support the con- clusions of law, will be applied. (Bowen v. Webster, 3 App. Div. 86; 38 N. Y. Supp. 917.) 26. Robbins v. Mount, 55 Hun, 80. 27. Jarvis v. Jarvis, 66 Barb. 381 ; Buckingham v. Payne, 36 Barb. 81; Avery v. Foley, 4 Hun, 415; Dolan V. Merritt, 18 Hun, 27; Wiltsie v. Eaddie, 4 Abb. (N. S.) 393; Beck v. Sheldon, 48 N. Y. 369; Quincy V. White, 63 N. Y. 370; Potter v. Carpenter, 71 N. Y. 74; Dz^vis v. Leopold, 87 N. Y. 620; Griscom v. Mayer, 12 N. Y. 586; Lane v. Borst, 28 N. Y. Super. 609; Wilson V. Knapp, 42 N. Y. Super. 25. 28. Dolan v. Merritt, 18 Hun, 27; Wilson V. Knapp, 42 N. Y. Super. 25; Sermont v. Baetjer, 49 Barb. 362; Van Slyke v. Hyatt, 46 N. Y. 263; Sidenberg v. Ely, 90 N. Y. 257, 266; Wiltsie V. Eaddie, 4 Abb. (N. S.) 395- 29. Sermont v. Baetjer, 49 Barb. 362. 30. Sermont v. Baetjer, 49 Barb. 362; Nelson v. Ingersoll 27 How. I ; Lefler v. Field, 33 How. 390. See also McAndrew v. Whitlock, 32 N. Y. Super. 623; Patterson v. Graves, II How. 91; Gove V. Hammond, 48 How. 38s; Quincy v. Young, 53 N. Y. 504. report; directing judgment and awarding costs. 91 will give credit, it is his duty to pass upon the facts and find in one direction or the other, and if the conflicting evidence leaves the mind in doubt, it is the duty of the referee to find the facts adversely to the party holding the affirmative.^' The facts found by a referee are precisely those which would be found by a jury in rendering a verdict to the same effect as the decision of a referee, and the legal conclusions found by the referee is the same decision upon the law that a trial judge would have stated to a jury, hypothetically, upon the same facts, upon the trial of the cause at Trial Term.^^ Neither conclusions of fact or of law should be stated in an argumentative way,^^ and they should be stated in the most concise and direct manner, and without repetition. 3"* All computations in reports should be in dollars and cents and not in fractions.35 Although a report be extremely imper- fect and an insufficient foundation for a valid judgment, it will prevent the ending of the reference under the provisions of section 1019.^* § 52. Form and contents; directing judgment and award- ing costs. — The report of the referee must direct the judg- ment to be entered.37 In one case a report was held defective in saying that the plaintifif "is entitled to recover," instead of actually and imperatively adjudging that he "do recover," ^^ but it is difficult to see any great distinction in 31. Bradley v. McLaughlin, 8 the plaintiff $190,224. The chan- Hun, S4S; Strong v. Place, 33 How. cellor directed the one-third of a 114; 27 N. Y. Super. 385. cent to be stricken from the report 32. Lefler v. Field, 33 How. 388. and decree entered for the balance 33. Mills V. Thursby, 12 How. only. 417; Glacius V. Black, 50 N. Y. 145. 36. Tallmadge v. Lounsbury, 36 34. Glacius v. Black, 50 N. Y. St. Repr. 684; affd., 126 N. Y. 655; 145. Parker v. Baxter, 19 Hun, 410, 418. 35. Dumont v. Nicholson, 2 37. Code of Civ. Proc, § 1022, Barb. Ch. 71. In this case the re- 38. Currie v. Cowles, 30 N. Y. port showed that there was due to Super. 6. 92 LAW AND PRACTICE AS TO REFERENCES. this difference; and a later case holds that a report contain- ing a statement that the plaintiff "is entitled to the usual judgment of foreclosure " is sufficient to support the judg- ment." Where costs are given by statute to the successful party, the referee can exercise no discretion in the disposi- tion thereof.f*° It is proper for him to indicate in his report that costs go to the successful party."*' In an action where costs are in the discretion of the court, the report must award or deny costs, and if it awards costs it must designate the party to whom costs to be taxed are awarded. "^^ In such a. case the appellate court will not control or interfere with the discretion of the referee, except where the exercise of such discretion is abused, ''^ but if the referee omits to award costs, the court will not send the report back for correction in that particular."** Directing a judgment without findings to support it is error, as where a memorandum decision was filed, as follows: " Final judgment may be granted as against the plaintiff, with costs," and judgment entered thereon was reversed ;'*5 also a memorandum decision containing the direction, " Judgment for defendant, with costs," held insufficient."*^ An indorsement on a complaint, signed by the judge, " Complaint dismissed, with costs, judgment may be entered accordingly," does not comply with the provi- sions of the statute."*' So an indorsement on the cover of 39. Albany County Savings Bank 44. First Nat. Bank of West V. McCarthy, 71 Hun, 227; 54 St. Troy v. Levy, 41 Hun, 469; 3 St. Repr. 577; 24 N. Y. Supp. 991. Repr. 298. 40. Lanz v. Trout, 46 How. 94, 45. Burnham v. Denike, 54 App, Fuller V. Conde, 47 N. Y. 89; Bur- Div. 132; 66 N. Y. Supp. 396. dick v. Hale, 13 Abb. N. C. 60; 4 46. Reynolds v. ^tna Life Ins. Civ. Proc. Rep. 311. Co., 6 App. Div. 254; 39 N. Y. 41. Gilliland v. Campbell, 18 Supp. 885. How. 177; Parker v. Baxter, 19 47. McManus v. Palmer, 13 App. Hun, 410. Div. 443; 43 N. Y. Supp. 601. 42. Code of Civ. Proc, § 1022. 43. Barker v. White, I Abb. Ct. App. Dec. 95. report; cannot authorize increased costs. 93 the summons and complaint in foreclosure, "Judgment of foreclosure and sale, with deficiency judgment," is insuffi- cient.''^ And where an opinion contained at the end a declaration that plaintiiifs are entitled to judgment for a sum stated, it was held not a direction of the judgment to be entered."' § 53. Form and contents; not to authorize increased costs. — A referee has no power to grant an extra allowance of costs on the ground of difficult and extraordinary case. Application therefor must be made to the court, upon a certificate of the referee showing the nature of the case, the questions arising on the trial, and in what particulars he deems the case " difficult and extraordinary." s° In some localities it seems to be the general practice for a referee to make an additional allowance, by a provision in his con- clusions of law, 5' but it would also seem to be the safer and better practice to make application to the court upon affi- davits and notice, accompanied by the referee's certificate. ^^ If the motion is granted the amount allowed by the court becomes part of the taxable costs of the action. ^3 Upon the trial of an action where the title to real estate comes in question, whereby either party becomes entitled to costs, 48. Osborn v. Heyward, 40 App. upon the ground that the referee's Div. 78; 57 N. Y. Supp. 542. certificate did not state what ques- 49. Hall V. Beston, 13 App. Div. tions arose on the trial nor did it 116; 43 N. Y. Supp. 304. specify the questions of law which 50. Howe V. Muir, 3 Code Rep. were deemed difficult. 21; Main v. Pope, 16 How. 271; 51. Gurney v. Union Transfer & People V. A. & S. R. R. Co., 5 Storage Co., 29 St. Repr. 278. Lans. 25; 57 N. Y. 161; Gould v. 62. Dode v. Manhattan Ry. Co., Chapin, 4 How. 185; 2 Code Rep. 70 Hun, 374. 107. 53. Coates v. Goddard, 24 N. Y. In the case last cited the motion Super. 118; Coffin v. Coke, 4 Hun, for extra allowance was denied 616. 94 LAW AND PRACTICE AS TO REFERENCES. or to increased costs, the referee must make a certificate stating the fact.^-* § 54. Report of referee on demurrer — The decision of the court, or the report of a referee, upon the trial of a demurrer, or upon the trial of the issues of fact or law, where a nonsuit is granted, must direct the final or interlocutory judgment to be entered thereupon, and in any such case it shall not be necessary for the court or referee to make any findings of fact. Where it directs an interlocutory judgment, with leave to the party in fault to plead anew or amend, or per- mitting the action to be divided into two or more actions, and no other issue remains to be disposed of, it may also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or terms imposed." The above provisions of the statute do not require that the report shall direct both interlocutory and final judgments,^* and there can be no judgment entered without a decision, in writing, of the issues," and the deci- sion on such an issue is not an order. ^^ It will be noted that the statute requires that the decision must direct not merely that an interlocutory or a final judgment be entered, 64. " Where, upon the trial of an to the matter, before the taxing action, the title to real property officer." (Code of Civ. Proc, comes in question, or any fact, I 3248.) whereby either party becomes en- 65. Code of Civ. Proc, 8 1021. titled to costs, or to increased 66. Thompson v. Stanley, 29 Abb. costs, specified in section 3258 of N. C. 11; 21 N. Y. Supp. 573. (The this act, the judge presiding at the form of decision and judgment as trial, or the referee, must, upon approved by the court may be the application of the party to be found in 29 Abb. N. C. 13.) benefited thereby, either before or 67. Code of Civ. Proc, J lOio; after the verdict, report, or deci- Palmyra v. Wynkoop, 24 St. Repr. sion is rendered, make a certificate, 824. stating the fact. Such a certificate 58. Funson v. Philo, 27 Misc. 262. is the only competent evidence, as FILING AND DELIVERING THE REPORT. 95 but the interlocutory or final judgment to be entered; that is, it must fix its terms with definiteness.^^ § 55. Filing or delivering the report — Upon the trial, by a referee, of an issue of fact, or an issue of law, or where a reference is made as prescribed in section 1015 of this act, the referee's written report must be either filed with the clerk, or delivered to the attorney for one of the parties, within sixty days from the time when the cause or matter is finally submitted; otherwise either party may, before it is filed or delivered, serve a notice, upon the attorney for the adverse party, that he elects to send the reference. In such a. case, the action must thenceforth proceed as if the refer- ence had not been directed, and the referee is not entitled to any fees.^° The Code of Procedure contained similar provisions with reference to a report upon the trial of issues only.^' The limitation fixed by the statute for the filing or delivery of the report has reference only to the time when a party may elect to terminate the reference. If a report is filed or delivered before the notice is given, it is perfectly valid, although sixty days have expired.*"^ Under the for- mer Code it was held that the report should be delivered to the successful party; and the other party has no right to the possession of it.^^ Jt -^vas also held to be improper for the 59. United States Life Ins. Co. opposite party that he elects to end V. Jordan, 21 Abb. N. C. 330, 339; the reference; and thereupon the 15 St. Repr. 292; 4 N. Y. Supp. 211. action shall proceed as though no 60. Code of Civ. Proc, § 1019. reference had been ordered and the 61. Code of Procedure, § 273, as referee shall not in such case be follows: "The referee or referees entitled to any fees." nhall make and deliver a report 62. Foster v. Bryan, 16 Abb. 396; within sixty days from the time the 26 How. 164; Mantles v. Myle, 26 action shall be finally submitted; How. 409; O'Neil v. Howe, 31 St. and in default thereof, and before Repr. 272. the report is delivered, either 63. Richards v. Allen, 11 N. Y» party may serve notice upon the Leg. Obs. 159. 96 LAW AND PRACTICE AS TO REFERENCES. referee to deliver two documents, each purporting to be an original report, one to each party/'* In a case where the report was in favor of the defendant and he declined to take it up, the plaintiff had an order directing the defendant to file the report within ten days and enter judgment thereon. In default thereof, plaintiff had leave to do so without costs.^s A referee is not bound to deliver his report until his fees are paid.^^ The interest of the prevailing party will generally secure the taking up of the report; but if he fails to do so, the referee must file it in order to prevent a termination of the reference. ^7 A referee is not bound to act, and may see to it before rendering any service that he is reasonably certain that his fees will be paid,^^ and if he files or delivers his report without exacting payment of his fees he must resort to an action to recover them.^^ A tender of the report within the time limited is not a delivery.'''' In case a referee should wholly fail or refuse to make a report he might be compelled by mandamus to do so,'' and he might also be proceeded against as for contempt ;7^ but fear of losing his fees will, in a majority of cases, be a sufficient inducement to the ordinary referee to make a report. § 56. When judicial functions cease.^ — If the order of ref- erence requires the referee to make a report within a limited time the power of the referee ceases at the time stated.''^ 64. Currie v. Cowles, 30 N. Y. 68. Fischer v. Raab, 81 N. Y. Super. 3. 235; revg. 56 How. 218. 65. Richmond v. Hamilton, 9 69. Perkins v. Taylor, 19 Abb. Abb. 71, note. 146. 66. Geib v. Topping, 83 N. Y. 70. Little v. Lynch, 99 N, Y. 112, 46; Little V. Lynch, 99 N. Y. 112; 114. revg. 34 Hun, 396; 6 Civ. Proc. 71. Wood on ^Mandamus (ist Rep. 418; I How. (N. S.) 95. and ed.), 20. affg. 5 Civ. Proc. Rep. 216; 67 72. Code of Civ. Proc, § 14. How. I. '''3- Brower v. Kingsley, i Johns. 67. Little V. Lynch, 99 N. Y. 112. Cas. 334. FILING AND DELIVERING THE REPORT. 97 The judicial functions of a referee cease also when the referee has actually decided the case, signed the report embodying such decision, and notified the parties thereof,^'* and he can- not be reinvested with it,'^ even where it is intended that the report shall simply be corrected so as to express the referee's precise and full intentions as to a dismissal of the complaint on the merits or not on the merits^^ Where a reference is terminated by notice for failure of the referee to file or deliver a report, the referee has no further power to act.''' After the report is delivered and a case made on appeal, the referee has a ministerial duty to perform in the settlement of the case.'* 74. Craig v. Craig, 66 Hun, 452; ing the case theretofore submitted 50 St. Repr. 461; 21 N. Y. Supp. for his decision. The necessity and 241; Ayrault v. Sackett, 17 How. propriety of such action should be 509; Quackenbush v. Johnson, SS clear." How. 96; Waters v. Shepherd, 14 77. Code of Civ. Proc, § 1019. Hun, 223. See ante, 5 48; Gregory v. Cryder, 75. Craig v. Craig, 66 Hun, 455; i Abb. (N. S.) 289. Ross V. Ross, 31 Hun, 140, 145; 78. Pratt v. Stiles, 17 How. 211; Gardner v. Schwab, 34 Hun, 582. Shearman v. Justice, 22 How. 241 ; 76. Petrie v. Trustees of Hamil- Niles v. Price, 23 How. 473; Lefler ton College, 92 Hun, 81; 71 St. v. Field, 33 How. 385; Nelson v. Repr. 804; 36 N. Y. Supp. 636. Ingersoll, 27 How. i; Cooper v. In First Nat. Bank v. Levy (41 Bowles, 42 Barb. 87; Voorhis Hun, 461), Landon, J., said: "We v. Voorhis, 50 Barb. 119; Trufant v. think the practice of sending a re- Merrill, 37 How. 531; Barne v. port back to a referee to supply Neuss, 14 Week. Dig. 522; Parker alleged omissions ought not to be v. Baxter, 19 Hun, 410; Patterson encouraged, and if allowed, in any v. Knapp, 83 Hun, 492; Sproul v. case it should be only to supply Star Co., 45 App. Div. 575; 61 N. some merely technical or clerical Y. Supp. 404; Gill v. Clark, 31 omission; not to reinvest that Misc. 337; 65 N. Y. Supp. 406. officer with judicial functions touch- 7 98 LAW AND PRACTICE AS TO REFERENCES. CHAPTER X. THE JUDGMENT AND APPEAL THEREFROM. Section 57. Entry of judgment and notice thereof. 58. Filing and serving exceptions. 59. Making and serving proposed case and exceptions. 60. Proposed case; its form and contents. 61. Making and serving amendments to proposed case and notice of settlement. 62. Settlement and signing of the case. 63. Resettlement of case. 64. The appeal. § 57. Entry of judgment and notice thereof Where the whole issue is an issue of fact, which was tried by a referee, the report stands as a decision of the court. Except where it is otherwise expressly prescribed by law, judgment upon such a report, or upon a decision of the court, upon the trial of the whole issue of fact without a jury, may be entered by the clerk, as directed therein, upon filing the decision or report.' The exception in the second sentence of the foregoing provision of the statute refers to matrimonial actions and actions where references are ordered upon appli- cation to the court for judgment upon default, — such as actions for foreclosure, partition, dower, etc. Judgment upon the report of a referee is to be entered in form, as if pronounced by the court.^ It must be upon a 1. Code of Civ. Proc, § 1228. a cause, stands as the foundation 2. Hancock v. Hancock, 22 N. Y. of a judgment wrhich is to be 568; Currie v. Cowles, 30 N. Y. formally drawn up and entered as Super. 3; Maicas v. Leony, 50 Hun, though pronounced by the court in 178; 19 St. Repr. 705; 2 N. Y. Supp. which the suit is pending. It be- 831; 22 Abb. N. C. I. comes the judgment of the court In Hancock v. Hancock the when so entered." Robertson, J., court said: "The whole section in Currie v. Cowles, said: "The (Code of Procedure, § 273) plainly Code pays the same respect to the means that the decision, or report decision of a referee to whom all of a referee, upon all the issues in the issues arc referred, as it does ENTRY OF JUDGMENT AND NOTICE THEREOF. 99 trial of all the issues ;3 it is only where questions are reserved to be passed upon by the court that an application for judg- ment is necessary.'* Interest upon the sum awarded by the referee, from the date of the report to the time of the entry of the judgment, may be added by the clerk in making up the judgment.5 In cases where an application to the court is not necessary, judgment upon the report of a referee may be entered immediately upon filing the report or at any time thereafter.* If a party enters judgment without giving his adversary notice of taxation of costs, he must thereafter give notice of re-taxation.'' In case an application is made to the court for an extra allowance of costs, such application must necessarily be made and disposed of before entry of judgment, as no notice of entry of judgment can be given which will limit the time for appeal while the amount of costs remains undetermined.^ After the entry of judgment, a copy of the report, with notice of the filing thereof and notice of the entry of judg- ment thereon, should be served upon the opposite party. ^ to that of a single judge, as it 6. Code of Civ. Proc, § 1228, as orders judgment to be entered upon amended by L. 1879, ch. 542. it in the same manner, which is by Prior to the amendment of 1879, the clerk. The entry of judgment the Code provided for entry of being merely clerical, no opposi- judgment " after the expiration of tion can justly be made to it." In four days from the filing of the Paine v. Aldrich (13 N. Y. Supp. decision or report, and the service, 45S), it was held that "the clerk upon the attorney for the adverse has no judicial functions and no party, of a copy thereof, and notice power except to enter the judgment of the filing; but not before." (See as directed by the court or referee." Code of Civ. Proc. [1877], § 1228.} 3. Code of Civ. Proc, § 1228; 7. Code of Civ. Proc, §§ 3263, Maicas v. Leony, 50 Hun, 178, 180. 3264. 4. Code of Civ. Proc, § 1231; 8. Sherman v. Wells, 14 How. Hathaway v. Russell, 45 N. Y. 552; Champion v. Plymouth Cong. Super. 538, note on p. 539. Society, 42 Barb. 441. 5. Code of Civ. Proc, § 1235; 9. Code of Civ. Proc, §§ 994, Sweeney v. City of New York, 69 1351; Sommers v. Ditmar, 20 Misc. App. Div. 80, 84; 74 N. Y. Supp. S7I. (108 St. Repr.) 589. lOO LAW AND PRACTICE AS TO REFERENCES. § 58. Filing and serving exceptions — After receiving a copy of the referee's report and notice of the entry of judg- ment thereon, the attorney for the unsuccessful party should at once prepare his exceptions to the report. The statute authorizes an exception to a ruhng upon a question of law, but not upon a question of fact.'° To raise a question of law, an exception must be taken and set forth in the case," and unless exceptions are taken the court on appeal cannot review." Where an issue of fact is tried by a referee, or by the court without a jury, an exception to a ruling, upon a question of law, made after the cause is finally submitted, must be taken, by filing a notice of the exception in the clerk's office, and serving a copy thereof upon the attorney for the adverse party. The exception may be so taken, at any time before the expiration of ten days after service, upon the attorney for the exceptant, of a copy of the deci- sion of the court, or report of the referee, and a written notice of the entry of judgment thereupon. If the notice of exception is filed before the entry of final judgment, it must be inserted in the judgment-roll; if afterward, it must he annexed to the judgment-roll. In either case, it consti- tutes a part of the papers, upon which an appeal from the judgment must be heard."* 10. Code of Civ. Proc, § 992, as 4 N. Y. Supp. 21 ; Mead r. Smith, follows: "An exception may be 28 Hun, 639; 3 Civ. Proc. Rep. 171; taken to the ruling of the court or Roe v. Roe, 14 Hun, 612.) of a referee, upon a question of 11- Ingersoll v. Bostwick, 22 N. law, arising upon the trial of an Y. 425. issue of fact. Except as prescribed 12. Mayor of New York v. in section one thousand one hun- Erben, 24 How. 358; Douglas v. dred and eighty of this act, an ex- Day, 3 Keyes, 434; Hunt v. ception cannot be taken to a ruling, Bloomer, 13 N. Y. 341; Weed v. upon a question of fact. For the Harlem R. R. Co., 29 N. Y. 616; purposes of this article, a trial by Enos v. Eigenbrodt, 32 N. Y. 444; a jury is regarded as continuing, Bearup v. Carraher, 5 Week. Dig. until the verdict is rendered." (See 558. Mooney V. Pagan, 21 St. Repr. 883; 12a. Code of Civ. Proc, § 994. FILING AND SERVING EXCEPTIOnX^ \ ^ -^ ■''^^ Prior to the repeal of sections 993 and 1023 and the amendment to section 1022 of the Code of Civil Procedure, exceptions were allowed to the refusal of a referee, to make specific findings of fact upon the written request of the par- ties to an action, '3 but under the amendment referred to the referee was permitted to state separately the facts found and the conclusions of law, or to state concisely the grounds on which the issues were decided; and, whenever judgment was entered on a decision which did not state separately the facts found, the defeated party could file an exception to such decision, in which case, on an appeal from the judgment entered thereon, upon a case containing excep- tions, the Appellate Division of the Supreme Court was required to review all questions of fact and of law, and either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party the judg- ment which the facts warrant,'* and a general exception to the " short-form decision " authorized a review of the entire procedure and evidence; '^ but where no exception to a " short-form decision " was taken, the Appellate Division could not review either the decision or any of the exceptions taken on the trial.'^ 13. See former sections 993, Polhemus, 14 Misc. 309; Stiefel v. 1022, 1023 of Code of Civil Pro- New York Novelty Co., 12 App. cedure. Div. 266; 42 N. Y. Supp. 511; 14. Code of Civ. Proc, § 1022, Murphy v. Reddy, 19 App. Div. 630; before amendment of 1903. Thompson v. Schwartz, 39 App. 15. Matter of Woodward, 69 Div. 658; 57 N. Y. Supp. 416; Gold- App. Div. 286; 74 N. Y. Supp. 755; stein v. Gudelia, 40 App. Div. 451; Petrie v. Trustees of Hamilton 58 N. Y. Supp. 167; Van Vleck v. College, 158 N. Y. 458; 53 N. E. Ballou, 40 App. Div. 489; 58 N. Y. Repr. 216; Health Department v. Supp. 125; National Protective Weekes, 22 App. Div. no; 47 N. Y. Assn. v. Cumming, 53 App. Div. Supp. 913. 227; 6$ N. Y. Supp. 946; H. & H. 16. May V. Menton, 21 Misc. 321; Reiners v. Niederstein, 55 App. 47 N. Y. Supp. 179; Hedges v. Div. 8a; 67 N. Y. Supp. 41. I02 LAW AND PRACTICE AS TO REFERENCES. As the amendment of 1903, restoring section 1022 to its original form, requires the referee to state separate his find- ings of fact and conclusions of law,'7 the rule which existed- prior to the amendment of that section in 1895 will be ap- plied '^ and the exceptions must be specific and point out the errors complained of.'^ The transfer of a portion of section 1022, as amended in 1895, to form a part of section 993, added in 1903,^° presen-es the authority and require- ment of the Appellate Division to review all questions of fact and of law, and it still may " either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party the judgment which the facts war- rant;^' but such provision does not permit a single general exception to the referee's decision to authorize a review of the whole case/^ If a party relies exclusively upon errone- ous rulings by the referee during the trial, formal exceptions to the conclusions of law or to the final decision are not necessary.^3 "phe party in whose favor all the issues of law were decided by the referee cannot except to his report -+ and exceptions by an appellant are not available to the re- spondent on an appeal/^ \ general exception to all the findings and conclusions of the referee is insufficient to raise 17. See ante, § 50; Code of Civ. 30. L. 1903, ch. 85. Proc, § 1022, as amended by L. 31. Code of Civ. Proc, § 993, in 1903, ch. 85. effect Sept. :, 1903. 18. Bowen v, Webster, 3 App. 22. Bowen v. Webster, 3 App. Div. 86; 38 N. Y. Supp. 917. Div. 86; 38 X. Y. Supp. 917. 19. Loomis v. Loomis, 51 Barb. 23. Dainese v. Allen, 36 X. Y. 257; Wheeler v. Billings, 38 N. Y. Super. 98; 45 How. 430; 14 Abb. 263; Jagger v. Littlefield, 8 Week. (N. S.) 363. Dig. 170; affd., 81 N. Y. 626; 10 34. Greene v. Smith, 13 App. Div. Week. Dig. 429; Hunter v. ]\Ian- 459; 43 X. Y. Supp. 610. hattan Ry. Co., 141 X. Y. 281; 35. Xoyes v. Phillips. 16 Abb. Daniels v. Smith, 130 N. Y. 696. (X. S.) 400. MAKING AND SERVING CASE AND EXCEPTIONS. IO3 any specific question and generally of no avail. ^^^ Excep- tions to conclusions of law must be served within the time prescribed, otherwise they are too late,''^'^ but the court has power to permit them to be filed, nunc pro tunc, after the ten days allowed therefor have expired.^'c xhe exercise of such power rests in the discretion of the court. ^^'^ Excep- tions to a referee's report are not required to be in any particular form; it is sufficient if they definitely indicate what findings of fact and conclusions of law are excepted to, and give notice to the opposite party of the questions that will be presented on the appeal. -^^^ § 59. Making and serving proposed case and exceptions. — In case an appeal from the judgment is intended the next step is the preparation and service of a proposed " case." The statute provides as follows: " When a party intends to appeal from a judgment, rendered after the trial of an issue of fact, or to move for a new trial of such an issue, he must, except as otherwise prescribed by law, make a case, and procure the same to be settled and signed, by the judge, justice, or the referee, by or before whom the action was 25a. Newell v. Doty, 33 N. Y. 83; 25c. Sheldon v. Wood, 14 How. Wheeler v. Billings, 38 N. Y. 263; 18; 6 Duer, 679; Spitz v. Tousey, Ledoux V. Grand Trunk R. R. Co.. 14 St. Repr. 871; Douglas v. Doug- 61 N. Y. 613; Moyer v. N. Y. C. & las, 7 Hun, 272; Gade v. Gade, 14 H. R. R. R. Co., 88 N. Y. 351; Abb. N. C. 510; Bortle v. Mellen, Krekeler v. Thaule, 73 N. Y. 608; 14 Abb. Pr. 228; Strong v. Harden- 17 Alb. L. J. 374; Ward v. Craig, burgh, 25 How. 438; Stiefel v. New 87 N. Y. 550; Murray v. Berdell, 97 York Novelty Co., 12 App. Div. N. Y. 617; Drake v. New York 266; 42 N. Y. Supp. 511; Code of Iron Mine, 156 N. Y. 90; 50 N. E. Civ. Proc., § 783. Repr. 785; Simms v. Voght, 94 N. 25d. Spitz v. Tousey, 14 St. Repr. Y. 654; Murray V. Babbitt, 10 Misc. 871; Bloom v. National United 363; 31 N. Y. Supp. 17; Miller v. Benefit S. & L. Co.. 78 Hun, 553; Altieri, 13 Misc. 220; 34 N. Y. Supp. 29 N. Y. Supp. 536. 236. 25e. Matter of MacFarlane, 65 25b. Hatch v. Fogarty, 39 N. Y. App. Div. 93; 72 N. Y. Supp. 724. Super. 488. I04 LAW AND PRACTICE AS TO REFERENCES. tried, as prescribed in the General Rules of Practice; or in a case of the death or disability of the judge, justice, or referee, in such manner as the court directs. The case must contain so much of the evidence, and other proceedings upon the trial, as is material to the questions to be raised thereby, and also the exceptions taken by the party making the case; and in a case where a special question is submitted to the jury, or the jury have assessed damages, such exceptions taken by any party to the action as shall be necessary to determine whether there should be a new trial in case the judgment should be reversed. If it afterward becomes necessary to separate the exceptions, the separation may be made, and the exceptions may be stated, with so much of the evidence and other proceedings as is material to the questions raised by them, in a case, prepared and settled, as directed in the General Rules of Practice; or in the absence of directions therein, by the court, upon motion. It is not necessary to state, in a case, that a finding upon the facts, or a ruling upon the law, was made, where the finding or ruling appears in a referee's report, or in the decision of the court, upon a trial by the court, without a jury;^^ but it is not necessary to make a case, where a party intends to appeal from a judgment entered upon a referee's report, and to rely only upon exceptions, taken as prescribed in section 994 of this act." ^' Whenever it shall be necessary to make a case, or a case and exceptions, or a case containing exceptions, the same shall be made, and a copy thereof served on the opposite party, if the trial was before a referee, viathin thirty days after service of a copy of the report and of writ- ten notice of the entry of the judgment thereon.^^ The time 26. Code of Civ. Proc, § 997. 27. Code of Civ. Proc., § 998. And see Supreme Court Rules 31- 28. Supreme Court Rule 32, first 35- paragraph. MAKING AND SERVING CASE AND EXCEPTIONS. IO5 for serving a case, or a case containing exceptions may be extended by the court/^* but no order therefor shall- be made unless the party applying for such order serve a notice of two days upon the adverse parties of his intention to apply therefor, stating the time and place for making such appli- cation.^' As the case must contain the exceptions author- ized by section 994 of the Code,^" it need not and cannot be served until after the exceptions are framed.^' If the party shall omit to make a case withm the time above limited, he shall be deemed to have waived his right thereto; and when a case is made, and the parties shall omit within the several times above limited,^^ the one party to propose amendments, and the other to notify an appearance before the judge or referee, they shall respectively be deemed, the former to have agreed to the case* as proposed, and the latter to have agreed to the amendments as proposed;'^ but a party may, upon a good cause shown, and upon such terms as justice requires, be permitted to serve a case or amend- ments' nunc pro tunc,^* or the default may be opened and an extension of time given in which to perform the required 28a. Strong v. Hardenburgh, 25 made, but Strong v. Hardenburgh How. 438; Gamble v. Lennon, 9 (25 How. 438) decides that the App. Div. 407; 75 St. Repr. 689; 41 proper practice is to apply to the N. Y. Supp. 277; Odell V. McGrath, court from whose judgment the 16 App. Div. 103; 79 St. Repr. (45 appeal is taken." N. Y. Supp.) 119; Wetter V. Erichs, 29. Supreme Court Rule 32, last 21 App. Div. 475; 81 St. Repr. (47 paragraph. N. Y. Supp.) 688. 30. Young v. Young, 133 N. Y. In Odell V. McGrath (16 App. 626. Div. 103) the court said: "It is ' 31. French v. Powers, 80 N. Y. unquestionable that the time to 146; 58 How. 389; Schwarz v. serve a case prescribed by the rules Weber, 103 N. Y. 658. may be extended, or a party per- 32. Supreme Court R".le 32. mitted to serve a case after his 33. Supreme Court Rule 33. time has expired. There is no ex- 34. Code of Civ. Proc, § 783; press provision in the rules as to Strong v. Hardenburgh, 25 How. where applications to relieve from 438. default in serving a case should be I06 LAW AND PRACTICE AS TO REFERENCES. act.35 AH motions for relief of this nature must be made in the court from whose judgment the appeal is taken. ^^ § 60. Proposed case ; its form and contents. — The Code requires the case to contain so much of the evidence and other proceedings upon the trial as is material to the ques- tions to be raised thereby, and also the exceptions taken by the party making the case.^^ A bill of exceptions shall contain only so much of the evidence as may be necessary to pre- sent the questions of law upon which exceptions were taken on the trial; and it shall be the duty of the judge upon settle- ment to strike out all the evidence and other matters which shall not have been necessarily inserted. A case shall not contain the evidence in hacc verba, or by question and answer, unless ordered by the judge or referee by or before whom the same shall be settled. But the facts of the case, together with the rulings on the trial, shall be stated in a narrative form, except that where it is claimed by either party that any particular testimony should be given in haec verba, the judge or referee who settles the case shall determine whether or not a proper presentation of the case for review requires such portion of the evidence to be stated in haec verba, whereupon the case shall be made accordingly. If any case or bill of exceptions does not conform to this rule, the court before which the same shall be brought for review may order the same back for resettlement. Exhibits shall not be printed at length unless the judge or referee so direct.^^ 35. Rothschild v. The Rio Grande App. Div. 407; 75 St. Repr. 689; 41 Western R. R. Co., 9 App. Div. N. Y. Supp. 2/7; Odell v. Mc- 406; 75 St. Repr. 703; 41 N. Y. Grath, 16 App. Div. 103; 79 St. Supp. 293. Repr. (45 N. Y. Supp.) 119; Strong 36. Rothschild v. The Rio Grande v. Hardenburgh, 25 How. 438. Western R. R. Co., 9 App. Div. 37. Code of Civ. Proc. § 997- 406; 75 St. Repr. 703; 41 N. Y. 38. Supreme Court Rule 34. See Supp. 293; Gamble v. Lennon, 9 also foot-note 43- P^Se iC/. PROPOSED case; its form and contents. 107 It will thus be seen that it is the intent of the statute and the rules of the court that the case shall present to the ap- pellate court in as short and compact forrn as possible the questions upon which a review is sought, and that the pro- visions of the Code and the rules are in harmony.^s The provisions of the Code are applicable only to appeals from the Supreme Court, the City Court of New York, and County Courts.'^" Special provision is made by which the making and settlement of a case upon appeal from a judg- ment or decree of a Surrogate's Court are regulated.'*' It is improper to make a complete copy of the stenographers minutes the case and exceptions,*- and penalties are fre- quently imposed for violation of the rule.'*' 39. Hubbard v. Chapman, 28 App. Div. 577; 85 St. Repr. 207; 51 N. Y. Supp. 207; 5 N. Y. Annot. Cas. 219; 27 Civ. Proc. Rep. 312. In this case it was said: " It thus appears that the Code and the rules are in harmony with respect to what constitutes a case and ex- ceptions. One refers to the other, and by the express terms of each it is only required that the case shall contain so much of the evi- dence and proceedings had upon the trial as is material to present the questions and exceptions which the appellant seeks to have re- viewed. In this view it can make no practical difference whether the evidence in terms be set out, or a statement of its effect be made. The essential thing is to have the fact appear, and when this is done, every requirement is met, as the parties will then have everything which will protect their rights, and the court be informed of all that is needful to make a proper disposi- tion of the case. While no men- tion is made of a bill of exceptions in the Code, the same is not true of the rule. But it is quite evident from a reading of both that the proposed case, for which provision is made in the Code, embraces what was formerly known as a bill of exceptions." (See also Winter V. Crosstown St. R. R. Co., 8 Misc. 362; 59 St. Repr. 598; 28 N. Y. Supp. 695.) 40. Code of Civ. Proc, § 3347. subd. 7. 41. Code of Civ. Proc, §§ 2545, 2576. 42. Ryan v. Wavle, 4 Hun, 804; Smith V. N. Y. C. & H. R. R. R. Co., 30 Hun, 144; Jewell v. Van Steenburgh, 58 N. Y. 85; Rowland v. Woodruff, 60 N. Y. 73, ^^■, Zucker V. Blumenthal, 58 N. Y. Supp. 318. In Donai v. Lutjens (20 Misc. 221) the court said: " It is the duty of trial judges to protect the Appel- late Division from uncouth and cumbersome appeal records, and it is the duty of attorneys not to pro- pose such cases for settlement." 43. In Smith v. N. Y. C. ft H. R. R. R. Co. (30 Hun, 144); Mc- Io8 LAW AND PRACTICE AS TO REFERENCES. In making a case the lines shall be so numbered that each copy shall correspond/* Alleged errors should be. made to appear on the face of the record; nothing should be left to appear by inference or conjecture, -^^ but only so much of the evidence and proceedings should be included as is nec- essary to present the points relied upon on the appeal.** If the referee renders an opinion giving his reasons for his findings and conclusions, it is no part of the " case " but should be attached to the case and printed."' § 6i. Making and serving amendments to proposed case and notice of settlement. — When a proposed case is received the party served may, within ten days thereafter, propose amendments thereto, and serve a copy on the party propos- ing a case or exceptions, who may then, within four days thereafter, serve the opposite party with a notice that the case or exceptions with the proposed amendments will be submitted for settlement at a time and place to be specified in the notice, to the judge or referee before whom the cause was tried. '*^ Nish V. Bowers (30 Hun, 214); 45. Clark v. Donaldson, 49 How. Mead v. Shea (26 Hun, 393) the 63; Hazewell v. Coursen, 81 N. Y. case was sent back for resettle- 630, 637. ment, thus causing delay; in Mead 46. Matter of Tweed, i Hun, V. Shea (26 Hun, 393) and Shaw v. 252; Marckwold v. Oceanic Steam Bryant (65 Hun, 57, 63) no dis- Nav. Co., 8 Hun, 547; Magie v. bursements were allowed to be Baker, 14 N. Y. 435; Smith v. N. Y. taxed for printing the improper (, ^ jj j^ j^ p, ^^^ ^^ -^^^^ case; and in Ryan v. Wavle )4 Hun, tj uu j /-u o a „ . . , , T 144; Hubbard v. Chapman, 28App. 804), It was suggested that the ex- _. o r- t^ -kt tr t ,,T ^ A .. • Div. 577; 85 St. Repr. 207; 51 N. Y. pense of resettlement and costs m- j u ii • t. ij Supp. 207; s N. Y. Annot. Cas. 219; curred by the improper case should ff^'o vv v- <.. y, be charged against the attorney at ^7 Civ. Proc. Rep. 312. fault. '^'^- Supreme Court Rule 41; War- 44. Supreme Court Rule 32; ren v. Warren, 22 How. 142. Stuart V. Binsse, 17 N. Y. Super. 48. Supreme Court Rule 32. 616. MAKING AND SERVING AMENDMENTS TO CASE. IO9 Whenever amendments are proposed to a case or excep- tions, the party proposing such case or exceptions shall, before submitting the same to the judge or referee for set- tlement, mark upon the several amendments his allowance or disallowance thereof, and shall also plainly mark upon the stenographer's minutes the parts to which the proposed amendments are applicable, together with the number of the amendment. If the party proposing the amendments claims that the case should be made to conform to the minutes of the stenographer he must refer at the end of each amend- ment to the proper page of such minutes. The judge or referee shall thereupon correct or settle the case. The time for settling the case must be specified in the notice and it shall not be less than four nor more than ten days after the service of such notice. "*' Omission to give this notice will be deemed an agreement to the amend- ments.5° The proposed amendments, like the proposed case, should contain nothing except such as may be necessary to prop- erly explain the points raised by the appellant. And it is irregular to serve a complete new case by way of amend- ment.5' 49. Id. court might give leave to substitute 50. Supreme Court Rule 33; a new case. * * * When such IngersoU v. Smith, 48 N. Y. Super, an instance occurs it may form an 522; 62 How. 474; Whiting v. Kim- exception to the rule, to be made ball, 19 N. Y. Super. 690. the subject of a special application 51. Stuart v. Binsse, 17 N. Y. for leave to propose a substitute; Super. 616. In this case the court but to entitle the party to do this said: " It can hardly be supposed he must show that it is not possible that, where counsel are acting in to make all material changes with- good faith, a case will ever be out proposing amendments which found so inaccurate, and a pro- will, in substance, amount to a new posed substitute so accurate that a case, or which will render the com- single allowance or disallowance parison and settlement more prolix would only be necessary. If such and tedious than to receive an a case should be proposed, the entire substitute." no LAW AND PRACTICE AS TO REFERENCES. § 62. Settlement and signing of the case A case must be settled and signed by the judge, justice, or referee before whom the action was tried, or, in case of his death, in such manner as the court directs.^^ If the action is tried before more than one referee, a majority of them may settle the case.53 Although the judicial functions of a referee cease when his report is signed and delivered^'' still his duties are not all ended nor are the rights of the litigants finally determined, especially in case the defeated party intends to appeal." So where the plaintifif and the referee, after being notified of defendant's intention to appeal, entered into an agreement whereby the referee was given a lien upon the judgment and claim against the defendant, it was held that the referee was disqualified from settling the case and the report was set aside and a new trial granted.^* 62. Code of Civ. Proc, §§ 997, referee had acquired an interest so 2545, 2576. direct that an unsuccessful appeal 53. Code of Civ. Proc, § 1026. would result in his pecuniary gain; 54. Ante, § 56. and it is immaterial whether the 55. Leonard v. Mulry, 93 N. Y. functions of his office, in the settle- 395. ment of the case or exceptions, are 56. Id. Danforth, J., in writing characterized as judicial or minis- the opinion in this case, said: terial. In performing them he " Whether the appeal prevailed must act as referee, and for that would depend upon the bill of ex- he was disqualified. ' No man,' ceptions or case, and its disclosure says the common law. ' can be of erroneous decisions made by the judge in his own cause,' and by referee in rejecting or allowing statute (Code, § 46), he ' cannot sit evidence, or his omission to notice as such,' in a cause or matter in material testimony, or other fault which he is interested. It is not during the conduct of the trial. A necessary to inquire whether the difference between the parties as to referee would be influenced by the these matters was not only possible new relation which he sustained in but certain; for the case made by the case. He might be afJected by the defendant was not satisfactory it unconsciously, and the rule of to the plaintifl, and upon amend- exclusion has regard, not so much ments prepared by him it stood for to the motives which in any given settlement. * * * Clearly the case may be supposed to bias the SETTLEMENT AND SIGNING OF THE CASE. Ill At the time and place fixed by the notice, or at such other time and place as may be agreed upon by the parties and ref- eree, the parties should appear before the referee, with the proposed case and the amendments and the minutes of the stenographer, for the purpose of having the case properly corrected and settled. The referee then proceeds to " set- tle " the case by striking out all unnecessary matter, add- ing new matter proposed by the amendments, which he deems material for a proper disposition of the case, and directing what portion of the testimony shall be inserted in the form of question and answer, and what exhibits, if any, shall be printed at length.57 The parties may agree on the facts proven, to be inserted in the case, instead of the testimony, on the approval of the judge ;5^ but attorneys cannot, by agreement, insist tipon presenting an incorrect record to the appellate court, es- pecially one which has reference to the referee's judicial ac- tion, and it would seem that a referee who has ascertained that such a case does not state the occurrences truthfully may apply to the court to direct a resettlement of a case. 5' It is of the utmost importance, where the appellant desires to review the facts upon an appeal from a judgment entered upon the report of a referee, that the case, when settled, shows, by a proper certificate of the referee, that it contains all the evidence, or all the evidence- bearing upon the find- judge, as to the apprehensions or 57. Supreme Court Rule 34. even the over-anxious suspicions of 58. Supreme Court Rule 32. litigants and the preservation of 59. See McManus v. The West- confidence in the administration of ern Assurance Co., 40 App. Div. justice. + * * The plaintiff has 86; 91 St. Repr. (57 N. Y. Supp.) elected to disqualify the referee be- 559; Wierichs v. Innis, 32 Misc. fore whom the trial was had, and 462; 100 St. Repr. (66 N. Y. Supp. "I cannot avoid the consequences of 554; 8 N. Y, Annot. Cas. 123; that act to the prejudice or incon- Zelinka v. Krauskopf, I City Ct. venience of his adversary." Rep. 89. 112 LAW AND PRACTICE AS TO REFERENCES. ings of fact sought to be reviewed. If such is not shown, the appellate court will assume that the evidence was suffi- cient to sustain the findings of fact and will decline to re- view them;^" but where a finding of fact is excepted to, it is not necessary that the case should show that it contains all the evidence.^' By the amendment to section 1022 of the Code,^^ the " short form " of decision was introduced, and by the same statute which authorized this new method of deciding causes a new method of getting the case into shape to review was also provided. By the same section a new kind of decision and a new kind of exception to such de- cision was authorized which was independent of that per- mitted by section 992 or 994, and the remedy thus provided was held to be exclusive ;^3 but with the abolition of the 60. Rowland v. Howland, 20 as a notice to the respondent of an Hun, 472; Porter v. Smith, 35 Hun, intention to raise a question of 118; 107 N. Y. S31; Davis Sewing legal error, and puts upon him the Machine Co. v. Best, 50 Hun, 76; responsibility of adding by amend- Wellington v. Continental C. & I. ment, any omitted evidence on that Co., 52 Hun, 408; Murphy v. Board question." In Brayton v. Sher- of Education, S3 Hun, 171; Grant man, the court said: "Where an v. Lawrence, 79 Hun, 565; Webster exception is filed to a finding of v. Kings County Trust Co., 80 Hun, fact, as its only purpose is to bring 420; Fleck V. Rau, 9 App. Div. 43; up a question of law that there is Sandiford v. Frost, 9 App. Div. 55; no evidence tending to sustain the Kissam v. Kissam, 21 App. Div. finding, it is for the respondent to 142; Aldridge v. Aldridge, 120 N. Y. see that all the evidence, which 614; Dibble v. Dimick, 143 N. Y. tends in any way to support it, is 549. contained in the case, and the ques- 61. Halpin v. Phoenix Ins. Co., tion of law may be reviewed with- 118 N. Y. 165; Brayton v. Sherman, out the statement in the case that 119 N. Y. 623; Van Bokkelen v. it contains all the evidence." (See Berdell, 130 N. Y. 141. In the lat- also Rosenstein v. Fox, 150 N. Y. ter case Haight, J., in disposing of 354; Israel v. Manhattan Ry. Co., the case, wrote: "Upon the trial 158 N. Y. 624.) of an issue of fact by a referee, or 62. L. 1894, ch- 688; L. 1895, ch. by the court without a jury, a find- 946. ing, without any evidence to sus- 63. Ross v. Caywood, 162 N. Y. tain it, is a ruling upon a question 259; Otten v. Manhattan Ry. Co., of law; and a ruling upon a ques- 150 N. Y. 395. tion of law, duly excepted to, serves SETTLEMENT AND SIGNING OF THE CASE. 113 " short-form decision " the new kind of exception was also aboUshed and the former practice must be adhered to.*'* If there are no exceptions or certificate that the case con- tains all the evidence, there is nothing before the court for review.*^ Where only a portion of the cause of action, or of the defenses litigated, are brought up for review, a cer- tificate stating that " the foregoing case contains all the evidence relating to the matters contained in said case and bill of exceptions " is sufficient.** A statement that the case contains, all the testimony given (or taken) on the trial of the action is not equivalent to the statement that the case contains all the evidence given on the trial ;*7 but a certificate which states that the case con- 64. Bowen v. Webster, 3 App. Div. 86; 38 N. Y. Supp. 917. Un- der the portion of section 1022, which (between 1895 and 1903) au- thorized the referee to " file a de- cision stating concisely the grounds upon which the issues have been decided and direct the judgment to be issued thereon," the appel- ant, in order to have a proper re- view on appeal was not only re- quired to " file an exception to such decision,'' but he was required also to have inserted in the pre- pared case the statement that it contained all the evidence, because it was such statement alone that gave the respondent information that questions of fact were to be reviewed on the appeal and put him on guard to see that all the requisite testimony was inserted. Otherwise he might assume that only questions of law were to be raised, in which case the record needed only to contain sufficient evidence to support the rulings of the court below. (See Mar- tin, Bing & Co. v. Baust, 23 App. Div. 234; 82 St. Repr. (48 N. Y. Supp.) 989; Waydell v. Adams, 23 App. Div. 508; 82 St. Repr. (48 N. Y. Supp.) 635; Frederick v. City of Johnstown, 47 App. Div. 222; 96 St. Repr. (62 N. Y. Supp.) 66; H. & H. Reiners V. Niederstein, 55 App. Div. 80; loi St. Repr. (67 N. Y. Supp.) 41; Otten V. Manhattan Ry. Co., 150 N. Y. 395; Rosenstein v. Fox, 150 N. Y. 354; Ross v. Caywood, 162 N. Y. 259; Wagener v. Grimm, 169 N. Y. 421.) 65. Brown v. James, 9 App. Div. 139; 75 St. Repr. 1473; 41 N. Y. Supp. 1107; H. & H. Reiners v. Niederstein, 55 App. Div. 80; 67 N. Y. Supp. 41. 66. Oaksmith v. Baird, 19 App. Div. 334; 80 St. Repr. (46 N. Y. Supp.) 263. 67. Parker v. Smith, 107 N. Y. S31; 12 St. Repr. 479; Wellington V. Continental C. & I. Co., 52 Hun, 408; 24 St. Repr. 678; Koehler v. Hughes, 73 Hun, 167; $7 St. Repr. I 14 LAW AND PRACTICE AS TO REFfiRENCES. tains " all the testimony given, all the exhibits of the parties, and all the proceedings had upon the trial " is equivalent to certifying that it contains all the evidence which has any bearing upon any disputed question of fact/^ After the case is settled it must be signed by the referee before whom the action was tried,*^ and ordered filed,''" and it must be filed within ten days after it shall have been set- tled, or it shall be deemed abandoned, unless the time is extended by order.'" The appellant should attach to the case as settled all the other papers required to form the ap- peal-book, procure the proper certification by the clerk as required by the statute,''^ and have the whole printed as re- quired by the statute and rules of the court^^ 131; 25 N. Y. Supp. 1061; Randall did not show that any case had V. New York Elevated R. R. Co., been settled or signed by the trial 76 Hun, 427; 59 St. Repr. 352; 27 judge, or that he had ordered the N. Y. Supp. 1062; Uppington v. record to be filed with the county Pooler, 47 St. Repr. 30; 19 N. Y. clerk, judgment of the trial court Supp. 428; De Mott V. Hendrick, will not be reversed as contrary to 47 St. Repr. 731; McCarthy v. Gal- evidence. (Gregory v. Clark, 53 lagher, 4 Misc. 188; S3 St. Repr. App. Div. 74; 65 N. Y. Supp. 687.) 176; 23 N. Y. Supp. 884; Bonwell Even though the rulings of the v. Auld, 9 Misc. 65; 59 St. Repr. court are reversible error, no re- 79; 29 N. Y. Supp. 15; Hannon v. view can be had unless it appears Gallagher, 19 Misc. 347; 77 St. that the case has been settled and Repr. 492; 43 N. Y. Supp. 492; signed by the judge or referee be- Becker v. Fischer, 13 App. Div. 555; fore whom the action was tried. 77 St. Repr. 685; 43 N. Y. Supp. (Schoonmaker v. Hilliard, 55 App. 685; Blanstein v. Guindon, 83 Hun, Div. 140; 67 N. Y. Supp. [loi St. 8; 64 St. Repr. 196; 31 N. Y. Supp. Repr.] 160.) 561 ; Gregory v. Clark, 53 App. Div. 70. Cornish v. Graflf, 36 Hun, 74; 65 N. Y. Supp. 687. 160; Zelinka v. Krauskopf, i City 68. Orcutt V. Rickenbrodt, 42 Ct. Repr. 89; 3 Week. Dig. 429. App. Div. 238; 93 St. Repr. (59 N. 71. Supreme Court Rule 35. Y. Supp.) 1008. 72. Code of Civ. Proc, § 1353. 69. Code of Civ. Proc, § 997. A stipulation that certification is Where the record contained a waived is not equivalent to cer- stipulation signed by the attorneys tification. (Bonnefond v. De Rus- for the respective parties, that such sey, 73 Hun, 377; 55 St. Repr. 918; record was a correct copy of the 26 N. Y. Supp. 193.) one filed with the county clerk, but 73. Supreme Court Rule 43. RESETTLEMENT OF CASE. II5 § 63. Resettlement of case — If any case or bill of excep- tions does not conform to this rule, the court before which the same shall be brought for review may order the same back for resettlement.''* Where the case states the evidence in the form of questions and answers instead of in narrative form it will be sent back for resettlement.'^ The court will not resettle a case tried before a referee; but if satisfied that the referee has failed to insert matter which properly be- longs therein it can send it back to the referee for resettle- ment with proper instructions.'* The necessity of having the case correctly settled, or if any errors are discovered or findings incorrectly stated, that a resettlement be directed is quite apparent, as the appellate court can only deal with the case as presented." The City Court of New York holds that a motion for a resettlement of a case should be made at the General Term of that court ;'^ but the Appellate Division in the First Department has held that it has no authority to entertain, as an original applica- tion, a motion for a resettlement of a case. That is the ex- clusive ofifice of the Special Term,'^ although the case is pending in Court of Appeals.^" The Special Term cannot compel a referee to settle a case in a particular manner.^' § 64. The appeal. — An appeal from a judgment entered upon the report of a referee, like appeals from other judg- 74. Supreme Court Rule 34. 79. Ross v. Ingersoll, 35 App. 75. Smith V. N. Y. C. & H. R. Div. 379! 88 St. Repr. (54 N. Y. R. R. Co., 30 Hun, 144; McNish v. Supp.) 827. Bowers, 30 Hun, 214; Mead v. 80. Whitbeck v. Waine, 8 How. Shea, 26 Hun, 393; Shaw v. Bry- ^^^. Talcott v. Rosenberg, 3 Daly, ant, 47 St. Repr. 227. ^03; 8 Abb. (N. S.) 287; Gould v. 76. Cheever v. Brown, 17 Civ. ^^^^^^ ^^ ^^^^ ^^^ Proc. Rep. 51. 01 -r. t ha 77. Binghamton Opera House «^- R°=^ ^- ^"2^"°"' ^S ApP- Co. V. City of Binghamton, 156 N. Div. 379; 88 St. Repr. (54 N. Y. Y 651. Supp.) 827; Mason v. Tietig, 22 78. Jaeger v. Koenig, 28 Misc. Misc. 557. 436. Il6 LAW AND PRACTICE AS TO REFERENCES. merits, must be taken, by serving upon the attorney for the adverse party, as prescribed in article third of title sixth of chapter eighth of this act, and upon the clerk, with whom the judgment appealed from is entered, by filing it in his office, a written notice to the effect that the appellant ap- peals from the judgment or from some specified part thereof.*^ "A party aggrieved," if not himself in default, may appeal.^^ The Appellate Division of the Supreme Court, or General Term, to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify, the judgment appealed from, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties; and it may, if necessary or proper, grant a new trial or hearing.^'* An appeal may also be taken to the Court of Appeals in a case where that court has jurisdiction.^' It is not the purpose of this work to enter into further detail in regard to appeals from judgments entered upon reports of referees. The practitioner is referred to a work covering especially and completely this branch of practice.*^ 82. Code of Civ. Proc, § 1300. appeal. (Hobart v. Hobart, 86 N. 83. Code of Civ. Proc, § 1294. Y. 6^6.) In a partition suit where the court 84. Code of Civ. Proc, § 1317. confirmed a referee's report except See also § 993, as added by L. 1903, as to his fees and ordered him to ch. 85, last sentence, pay over certain moneys which he 85. Code of Civ. Proc, § 1324. had retained as fees, it was held 86. See Baylies on New Trials that the referee might properly and Appeals, second edition. POWER OF REFEREE TO PUNISH FOR CONTEMPT. II7 CHAPTER XL CONTEMPT. Section 65. A referee may be punished for contempt. 66. Power of referee to punish for contempt. 67. Proceedings to punish for contempt. 68. What acts may be punished. 69. The punishment. § 65. A referee may be punished for contempt There may be instances in which the referee himself may be subject to contempt proceedings. The Code provides: "A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court, may be defeated, impaired, impeded, or prejudiced, in either of the following cases: I. An attorney, counselor, clerk, sheriff, coroner, or other person, in any manner duly selected or appointed to perform a judicial or ministerial service, for a misbehavior in his office or trust, or for a willful neglect or violation of duty therein; or for disobedience to a lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge." ' § 66. Power of referee to punish for contempt The stat- ute gives to a referee ample power to punish for contempt. Upon a trial he exercises the same power as the court to preserve order and punish the violation thereof; to punish a witness for contempt of court, for nonattendance, or re- fusal to be sworn, or to testify."' Under this section of the 1. Code of Civ. Proc, § 14; 2. Code of Civ. Proc, § ,1018. Steele v. Gunn, 19 St. Repr. 654; 3 N. Y. Supp. 692. Il8 LAW AND PRACTICE AS TO REFERENCES. Code a referee is deemed to take the place of the court, and on the trial of a cause has substantially all the powers of the court at Special or Trial Term;^ but the power of a referee to punish for contempt is not exclusive.'' Where an ofifense is committed before a referee appointed by the court, or with reference to a trial or proceeding before such ref- eree, the referee may himself punish the ofifender, or he may, in his discretion, order the proceeding made returnable be- fore the court ;5 and where a referee to hear and determine the issues makes an order to show cause why a party should not be punished for contempt returnable before the court, it is the duty of the latter to pass upon the question.^ The party aggrieved may apply to the court in the first instance.'' § 67. Proceedings to punish for contempt. — The proceed- ings to punish a contempt of court are regulated by title 3 of chapter 17 of the Code of Civil Procedure. In a case specified in section 14 of this act, or in any other case where it is specially prescribed by law that a court of record, or a judge thereof, or a referee appointed by the court, has power to punish, by fine and imprisonment, or either, or generally as a contempt, a neglect or violation of duty, or other misconduct; and a right or remedy of a party to a civil 3. Schuyler v. Smith, 51 N. Y. tify, before him. The order or 309. warrant may, in the discretion of 4. Matter of Seeley & Jobson, 6 the referee, be made returnable be- Abb. Pr. 217, n. fore him, or before the court. 5. Code of Civ. Proc, § 2272, as Where it is made returnable before follows: "An order to show cause the referee, he has all the power may be made, or a warrant may be and authority of the court, with issued, as prescribed in section respect to the motion, or special 2269 of this act, by a referee ap- proceeding instituted thereby." pointed by the court, where the 6. Naylor v. Naylor, 32 Hun, offense is committed upon the trial 228. of an issue referred to him, or con- 7. Code of Civ. Proc, § 2269, as sists of a witness's nonattendance, follows: "The court or judge, au- or refusal to be sworn, or to tes- thorized to punish for the offense, PROCEEDINGS TO PUNISH FOR CONTEMPT. II9 action or special proceeding pending in the court, or before the judge or the referee, may be defeated, impaired, im- peded, or prejudiced thereby, the offense must be punished as prescribed in this title.* i. Where the offense is com- mitted in the immediate view and presence of the court, or of the judge or referee, upon a trial or hearing, it may be punished summarily. For that purpose, an order must be made by the court, judge, or referee, stating the facts which constitute the ofTense, and bring the case within the pro- visions of this section, and plainly and specifically prescrib- ing the punishment to be inflicted therefor.^ A referee who is appointed to report testimony with his opinion has power to punish a witness for contempt in refusing to answer ques- tions.'" 2. The party aggrieved may apply to the court in the first instance, and the court must, upon being satisfied, by affidavit, of the commission of the- offense, either make an order, requiring the accused to show cause why he should not be punished for the alleged offense, or issue a warrant of attachment, directed to the sheriff of a particular county, may, in its or his discretion, where judge, either forthwith, or at a the case is one of those specified in time and place therein specified, to either of the last two sections, and, answer for the alleged offense." in every other case, must, upon 8. Code of Civ. Proc, § 2266. being satisfied, by affidavit, of the 9- Code of Civ. Proc, § 2267. commission of the offense, either The contumacious and unlawful re- 1. Make an order, requiring the iusal of a person who has been accused to show cause before it or sworn as a witness, to answer any him, at a time and place therein legal and proper interrogatory may specified, why the accused should be punished criminally as a viola- not be punished for the alleged tion of subdivision 5 of section 8 offense; or of the Code of Civil Procedure, or 2. Issue a warrant of attachment, civilly, as a violation of subdivision directed to the sheriff of a par- 5 of section 14 thereof. (People ticular county, or, generally, to the ex rel. Jones v. Davidson, 35 Hun, sheriff of any county where the ac- 471.) cused may be found, commanding 10. People ex rel. Baldwin v. him to arrest the accused, and Miller, 9 Misc. i; 59 St. Repr. 702; bring him before the court or 29 N. Y. Supp. 305. 120 LAW AND PRACTICE AS TO REFERENCES. or, generally, to the sheriff of any county where the accused may be found, commanding him to arrest the accused and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged ofifense." 3. Where the offense is committed upon the trial of an issue before a referee, or consists of a witness' non- attendance, or refusal to be sworn or to testify before him, an order to show cause may be made, or a warrant may be issued as prescribed in section 2269, by the referee, and the warrant may, in the discretion of the referee, be made re- turnable before him, or before the court. When made re- turnable before himself, the referee has all the power and authority of the court with respect to the motion or special proceeding instituted thereby.'"^ If the* proceedings are be- gun by warrant, a copy thereof, and of the affidavit upon which it is issued must be served upon the accused, when he is arrested by virtue thereof,'^ and at the time of issuing a warrant of attachment, the court, judge, or referee, may, in its or his discretion, by an indorsement thereon, fix a sum in which the accused may give an undertaking for his appearance to answer.'* If the warrant is not so indorsed, or if, being indorsed, no undertaking is given, the sheriff must keep the accused in his custody until further order of the referee or the court, but need not restrain him of his liberty further than is necessary to secure his personal at- tendance. '^ If the accused gives the required undertaking with two sufficient sureties, to the effect that he will ap- pear at the time when, and the place where, the warrant is 11. Code of Civ. Proc, § 2269. Miller, g Misc. i; 59 St. Repr. 702; The provision of this section re- 29 N. Y. Supp. 305.) quiring an affidavit does not apply 12. Code of Civ. Proc, 5 2272. where the of?ense was committed 13. Code of Civ. Proc, § 2274. in the presence of the court or ref- 14. Code of Civ. Proc, § 2275. eree. (People ex rel. Baldwin v. 15. Code of Civ. Proc, § 2276. PROCEEDINGS TO PUNISH FOR CONTEMPT. 121 returnable and then and there abide the direction of the court or referee, as the case requires, he must be discharged from the arrest.'^ If the accused is already in custody un- der any other process, a warrant of attachment cannot be issued, but instead thereof the court must issue a writ of habeas corpus requiring the sheriff or other officer in whose custody the accused may be, to bring him before the court. Such officer must bring the accused before the court and there detain him until further order.'' The provisions of the section last referred to, standing alone, would seem inapplicable to a case for contempt be- fore a referee when the accused is already in custody, but, where read in connection with other sections,'^ it would seem otherwise. Where a warrant of arrest is issued in a contempt proceeding, the court or referee has no power to allow the accused to purge himself of the contempt, with- 16. Code of Civ. Proc, § 2277. or referee must determine whether 17. Code of Civ. Proc, § 2278. the accused has committed the 18. Code of Civ. Proc, §§ 2280, ofifense charged." 2281, 2282. The interrogatories mentioned in " § 2280. Where the accused is the last section are unnecessary produced, by virtue of a warrant, when the proceeding is instituted or a writ of habeas corpus, or ap- by an or^'er to show cause, as in pears upon the return of a warrant, such cas', the party accused has an the court, judge, or referee, must, opportunity to make his defense by unless he admits the offense affidavits. (Mayor, etc. v. N. Y. & charged, cause interrogatories to S. I. Ferry Co., 40 N. Y. Super, be filed, specifying the facts and cir- 300, 315; aflfd., 64 N. Y. 622; Pitt cumstances of the offense charged v. Davison, 40 N. Y. 235.) Inter- against him. The accused must rogatories are also unnecessary make written answers thereto, un- when the contempt consists in the der oath, within such reasonable admitted refusal to answer ques- time as the court, judge, or referee tions, and the party has been served allows therefor; and either party with the affidavits and order to may produce affidavits, or other show cause, and is before the court proofs, contradicting or corrobo- and has full opportunity to answer, rating any answer. Upon the (Lathrop v. Clapp, 40 N. Y. 328; original affidavits, the answer, and afTg. 23 How. 423; Pitt v. Davison, subsequent proofs, the court, judge, 37 N. Y. 235; 3 Abb. [N. S.l 398; 122 LAW AND PRACTICE AS TO REFERENCES. out making reparation to the injured party." There must be interrogatories, unless the accused admits the contempt as charged."'^ If the proceedings are begun by an order to show cause based upon affidavits setting forth the facts, the order to show cause may be made at any time, before or after final judgment, and when made returnable before the court, may be made by the referee,^" or by any judge authorized to grant an order without notice,^' and it must be made re- turnable before the referee,^" or a term of court at which a contested motion may be heard. ^' In effect the applica- tion is a motion in the action or proceeding then pending before the referee, and the affidavits and papers are properly entitled therein.^^ 34 How. 355; 4 Trans. App. 266; revg. 37 Barb. 97, which reverses 12 Abb. 385; Watson v. Fitzsim- mons, 5 Duer, 629; Taylor v. Bald- win, 14 Abb. 166; People ex rel. Childs V. Cartwright, 11 Hun, 362; People ex rel. Gaston v. Campbell, 40 N. Y. 133.) " § 2281. If it is determined that the accused has committed the offense charged, and that it was calculated to, or actually did, de- feat, impair, impede, or prejudice the rights or remedies of a party to an action or special proceeding, brought in the court, or before the judge or referee; the court, judge, or referee must make a final order accordingly and directing that he be punished by fine or imprison- ment, or both, as the nature of the case requires. A warrant of com- mitment must issue accordingly.'' A warrant of commitment is a necessity. (Matter of Crosker, 25 Abb. N. C. 89; II N. Y. Supp. 504. And see Matter of Swenarton v. Shupe, 40 Hun, 42.) " § 2282. Where the accused is brought up by virtue of a writ of habeas corpus, he must, after the final order is made, be remanded to the custody of the sheriff, or other officer, to whom the writ was directed. If the final order directs that he be punished by imprison- ment, or committed until the pay- ment of a sum of money, he must be so imprisoned or committed, upon his discharge from custody under the mandate, by virtue of which he is held by the sheriff, or other officer." 19. People ex rel. Baldwin v. Miller, 9 Misc. i; 59 St. Repr. 702; 29 N. Y. Supp. 305. 19a. Albany City Bank v. Schermerhorn, 9 Paige, 372. 20. Code of Civ. Proc, § 2272. 31. Code of Civ. Proc, § 2271. 22. Code of Civ. Proc, § 2273; Matter of Bronson, 12 Johns. 460; PROCEEDINGS TO PUNISH FOR CONTEMPT. I23 The proceedings to punish for contempt must be taken as prescribed in the statute, and all the rights of the accused carefully preserved.^^ The statute requires that there should be served upon the accused before he shall be punished for contempt, either an order to show cause why such punish- ment should not be inflicted, or there should be issued a warrant of attachment to bring him before the court.^* But whichever mode of procedure is adopted, it is necessary that certain facts shall be made to appear to the court.^^ But where the offense is committed in the immediate view and presence of the referee, upon a trial or hearing, it may be punished summarily.^^ The facts stated by the court, judge, or referee in the order of commitment take the place of the affidavit required under other circumstances,^'' and must be taken as true.^^ The order cannot be in the alternative or Erie Ry. Co. v. Ramsey, 45 N. Y. without further process." (Code of 637; Whitman v. Haines, 21 St. Civ. Proc, § 2283.) Repr. 41. 23. McComb v. Weaver, 11 Hun, But a proceeding for contempt, 271, 272; Bradbury v. BHss, 23 App. instituted by warrant, is an original Div. 606. special proceeding against the ac- 24. Code of Civ. Proc, § 2269. cused, in behalf of the people, and 25. Bradbury v. Bliss, 23 App. should be entitled as such, thus: Div. 606; 82 St. Repr. (48 N. Y. " The People of the State of New Supp.) 912. York, upon the relation of Peter 26. Code of Civ. Proc, § 2268. Jones, v. Richard Hobson." (Code Where a witness declined to an- of Civ. Proc, § 2273; Folger v. swer a question held proper by the Hoagland, 5 Johns. 235; Gibbs v. court, it was held to be an ofTense Prindle, 11 App. Div. 470; 76 St. committed "in the immediate view Repr. [42 N. Y. Supp.] 329.) and presence of the court " and no " Upon the return of an order to affidavit or further evidence was show cause, the questions which needed for commitment. (Matter arise must be determined as upon of Hackley, 24 N. Y. 74; 24 How. any other motion; and, if the de- 369; afTg. 12 Abb. 150; 21 How. 54; termination is to the effect speci- People ex rel. Baldwin v. Miller, fied in the last section but one 9 Misc. i; 59 St. Repr. 702; 29 N. (§ 2281), the order thereupon must Y. Supp. 305.) be to the same effect as the final 27. Code of Civ. Proc, § 2268. order therein prescribed. Upon a 28. Matter of Eldridge, 82 N. Y. certified copy of the order so made, 161. the offender may be committed. 124 LAW AND PRACTICE AS TO REFERENCES. conditional, namely, that the offender pay a fine or in de- fault thereof be imprisoned. In such a case the true rule of practice is, that an order imposing and directing the pay- ment of a fine be made and served, and if the accused do not then comply therewith, an absolute and final order should be made adjudging him guilty of the contempt and a commitment issued for his imprisonment.'^^ § 68. What acts may be punished — It is not possible to recite all specific acts or omissions which may constitute a contempt before a referee, but reference is here made tO' a few by way of illustration. Creating a positive disturbance, and an open and constant defiance of the court in the carry- ing on of its regular business constitutes a criminal con- tempt.^" The contumacious and unlawful refusal of a person who has been sworn, as a witness, to answer any legal and proper question constitutes a contempt ;3' but a witness can- not be punished for a contempt for refusing to answer a question which is immaterial and irrelevant to the issue upon the trial of which he is examined.^^ A person who fails 29. Matter of Falkenburg, 19 civil contempt. (Bergin v. Deer- Misc. 418; First Nat. Bank v. Fitz- ing, 70 Hun, 381.) Patrick, 80 Hun, Tj; Rice v. Ehle, 30. Falkenburgh v. Frank, 20 55 N. Y. 521. Misc. 692; 46 N. Y. Supp. 675; 80 The order adjudging a party St. Repr. 675. guilty of a contempt should de- 31. Burnett v. Phalon, II Abb. scribe the acts committed or Pr. 157; People ex rel. Jones v. omitted which constituted the con- Davidson, 35 Hun, 471 ; affg. 6 Civ. tempt and an adjudication made Proc. Rep. 250. In the latter case thereon; the order should show it was held that the acts of the what the party shall do, or how witness was a contempt which much he shall pay, if anything, in might be punished criminally, as a order to purge himself from con- violation of Code of Civil Pro- tempt, and there must be an ad- cedure, section 8, subdivision 4, or judication that the acts done or cifilly, as a violation of section 14, omitted impair the rights of a subdivision 5 thereof, party to the action. These three 33. Matter of Odell, 19 St. Repr. things are necessary parts of every 259; 6 Dem. 344. order adjudging a party guilty of a THE PUNISHMENT FOR CONTEMPT. I25 to attend as a witness before a referee, pursuant to a sub- poena duly served,33 and it need not be made to appear that such conduct was calculated to, or did, impair the rights or remedies of the parties complaining thereof.^* One who fails to produce books, pursuant to a subpoena duces tecum, may be punished for contempt.^^ The following mentioned acts have been held to constitute contempts: Breaking open parts of books which have been sealed up and deposited in master's (referee's) ofifice for inspection ;3^ refusing to obey referee's order to allow a witness while testifying to examine books to enable the adverse party to examine him thereon j^' leaving the room after being sworn and refusing to testify ;3* counsel instructing witness, in presence of referee, not to answer questions.^' A witness is not guilty of a contempt in refusing to testify to a fact which would subject him to a penalty or forfeiture j-^" or refusing to answer a question tending to disgrace or criminate himself/' The statute makes certain communica- tions confidential, and witnesses named therein are not al- lowed to disclose them/^ § 69. The punishment. — When a person has been ad- judged guilty of a contempt the referee, if the proceeding 33. Bleecker v. Carroll, 2 Abb. 38. Reynolds v. Parkes, 2 Dem. 82; People ex rel. Duffus v. 399; People ex rel. Baldwin v. Mil- Brown, 46 Hun, 320. ler, 9 Misc. i; 59 St. Repr. 702; 29 34. Bleecker v. Carroll, 2 Abb. j^ y. Supp. 305. 82; Woods V. De Figaniere, 24 N. 39_ jjeerdt v. Wetmore, 25 N. Y. Y. Super. 607. S^pg, 6g7 35. Holly Mfg. Co. v. Venner 74 40. Henry v. Salina Bank, i N. Y. Hun, 458; 57 St. Repr. 230; 26 N. Y. Supp. s8; affd., 60 St. Repr. 480; \^ ^ ^ ^ , ,, „ ^ , T J o xj o.,*; 41. Lohman v. People, i N. Y. Bonesteel v. Lynde, 8 How. 226. 36. Dias V. Merle, 2 Paige Ch. 379! Matter of Lewis, 39 How. iSS- ^g^ 42. Code of Civ. Proc, §§ 831, 37. Sudlow V. Knox, 7 Abb. (N. 833-835- S.) 411; 4 Abb. Ct. App. Dec. 326. 126 LAW AND PRACTICE AS TO REFERENCES. is before him, or the court before which the proceeding is brought, must determine what punishment shall be inflicted. The Code provides as follows: " If an actual loss or in- jury has been produced to a party to an action or special proceeding, by reason of the misconduct proved against the offender, and the case is not one where it is specially pre- scribed by law, that an action may be maintained to recover damages for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must be imposed 'upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court. The payment and acceptance of such a fine constitute a bar to an action by the aggrieved party, to recover damages for the loss or injury. Where it is not shown that such an actual loss or injury has been produced, a fine must be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner. A corporation may be fined as prescribed in this section.'*^ " Where the misconduct proved consists of an omission to perform an act or duty, which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed. In such a case, the order, and the warrant of commitment, if one is issued, must specify the act or duty to be performed, and the sum to be paid. In every other case, where specific provision is not otherwise made by law, the offender may be imprisoned for a reasonable time, not exceeding six months, and until the fine, if any, is paid; and the order, and the warrant of commitment, if any, must specify the amount of the fine, and the duration of the imprisonment'*'* 43. Code of Civ. Proc, § 2284. 44. Code of Civ. Proc, § 2285. THE PUNISHMENT FOR CONTEMPT. I27 " Where an offender, imprisoned as prescribed in this title, is unable to endure the imprisonment, or to pay the sum, or perform th^ act or duty, required to be paid or performed, in order to entitle him to be released, the court, judge, or referee, or, where the commitment was made under section 2457 of this act, the court, out of which the execu- tion was issued, may, in its or his discretion, and upon such terms as justice requires, make an order, directing him to be discharged from the imprisonment." "^ An examination of the foregoing provisions of the statute will show that in cases where a fine may be imposed, con- tempts are of two kinds, viz.: 1. Those producing actual loss or injury to a party; 2. Those producing no loss or injury to a party, and in cases where imprisonment may follow the- adjudication, it also appears that contempts are of two kinds, each deter- mining the length of time the offender may be imprisoned, viz.: 1. Where the misconduct consists of an omission to per- form an act or duty, which it is yet in the power of the offender to perform; 2. All other contempts where special provision is not otherwise made by law. In cases where actual loss or injury has been produced to a party, and the case is not one where it is specially pre- scribed by law, that an action may be maintained to recover damages, for the loss or injury, a fine, sufficient to indemnify the aggrieved party, must he imposed upon the offender and collected and paid over to the aggrieved party, under the direc- 45. Code of Civ. Proc, § 2286. and prosecuted by the person ag- An offender may also be prose- grieved (§ 2289), or by the at- cuted by indictment (§ 2287), and torney-general or district attorney, in case of default in appearance in the name of the people, after undertaking given, the under- (§ 2290.) taking may be forfeited (§ 2288) 128 LAW AND PRACTICE AS TO REFERENCES. Hon of the court.*^ The amount of the fine to be imposed must be ascertained by proof of actual loss by reason of the ofifense complained of and an adjudication made thereon."*' The fine may include counsel fees necessarily paid to protect the rights of the injured party*^ and other items which may be properly included in a bill of costs as disbursements.*' Where it is not shown that an actual loss or injury was pro- duced, the fine is limited to complainant's costs and expenses and $250 in addition thereto.^" Where the misconduct proved consists of an omission to perform an act or duty, which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed^' and the orders and warrant of commitment must specify the act to be per- 46. Code of Civ. Proc, § 2284, first sentence; Brett v. Brett, 33 Hun, 547; Fitzsimmons v. Ryan, 64 App. Div. 404; 106 St. Repr. (72 N. Y. Supp.) 65. 47. Sudlow V. Knox, 7 Abb. (N. S.) 411; Simmons v. Simmons, 6 Week. Dig. 263. In Sudlow v. Knox; it was held that " these damages must be ascertained by the like evidence * * * as upon the trial of an action brought for the injury" and also "the amount is no more discretionary in pro- ceedings under the statute as for contempt, to procure redress, than in an action brought for that pur- pose. In Simmonds v. Simmonds it was held that when a fine was to be imposed sufficient to indemnify the party injured, the court had no power to fix the amount arbitrarily, but must, in determining it, rest upon facts proved. (See also De- jonge V. Brenneman, 23 Hun, 332; Clark V. Bininger, 75 N. Y. 344; Mofifatt V. Herrman, 116 N. Y. 131.) 48. Van Valkenburgh v. Doo- little, 4 Abb. N. C. 72; Brett v. Brett, zz Hun, 547; affd., 98 N. Y. 619; People ex rel. Pierce v. Brice, 62 App. Div. 593; 105 St. Repr. (71 N. Y. Supp.) ig6. 49. King V. Flynn, 37 Hun, 329. 50. Code of Civ. Proc, § 2284; MofTatt V. Herrman, 116 N. Y. 131, 135- In Matter of Hatfield (17 App. Div. 430; 45 N. Y. Supp. 270); Isaacs V. Calder, (42 App. Div. 152; 59 N. Y. Supp. 21), it was held that a fine of less than $250 is authorized with- out proof of actual damages. And in Country Club Assn. v. Lohbauer (43 App. Div. 169; 59 N. Y. Supp. 389), attorney's fees paid by com- plainant in the contempt proceed- ings and costs may be included in the fine, in addition to the $250 mentioned in the statute. 51. Code of Civ. Proc, § 2285, first sentence. THE PUNISHMENT FOR CONTEMPT. 129 formed with respect to which the offender has been adjudged guilty, and the amount of fine to be paid;^^ but where the order is obeyed before final decision is made, imprisonment cannot be ordered." In other cases, where special provision is not otherwise made by law, the offender may be impris- oned for a reasonable time not exceeding six months, and until the fine, if any, is paid. 5* 52. People ex rel. Jones v. Davidson, 35 Hun, 471. 53. People ex rel. Pierce v. Brice, 62 App. Div. S93; i05 St. Repr. (71 N. Y. Supp.) 196. 54. Code of Civ. Proc, § 2285. In a proceeding under section 876 of the Code, if a party refuses to answer a legal question or to pro- 9 duce books upon the order of the referee, a judge may commit the offender to jail until he submits to do the act required. No fine can be imposed, as the section provides that section 856 applies to such a case. (Press Publishing Co. v. Associated Press, 41 App. Div. 493-) TITLE II. INTERLOCUTORY REFERENCES. Chapter I. General Provisions (§§ 70-76). II. Interlocutory References in Particular Cases (§§ 77-84). CHAPTER I. GENERAL PROVISIONS. Section 70. Definitions and statutory provisions. 71. When interlocutory reference ordered. 72. The order of reference and the hearing. 73. Taking and filing the testimony. 74. The report and exceptions. 75. Hearing exceptions and confirmation of the report. 76. Review of order of confirmation. § 70. Definitions and statutory provisions The term " interlocutory " means (in law) something which is done between the commencement and the end of a suit or action, which decides some point or matter, which, however, is not a final decision of the matter in issue.' It is that which decides, not the cause but only settles some intervening matter relating to the cause. The matter thus settled is brought before the court by special motion.^ Interlocutory references may be defined as references for the purpose of ascertaining and determining some preliminary, subordinate, or intermediate point or question in the progress of a suit, upon which final judgment may be based, or, in short, they are references for any purpose short of a final determination of all the issues in an action. The duties of a referee in 1. Bouvier's Law Diet. (ed. 1897), 3. Mora v. Sun Mutual Ins. Co., Vol. I, p. 1696. 13 Abb. 304. (131) 132 LAW AND PRACTICE AS TO REFERENCES. what is termed an interlocutory reference are limited by the terms of the order appointing- him.^ It frequently occurs upon the trial of a cause that questions of fact arise, other than such as are raised by pleadings which must be settled before complete justice can be done be- tween the parties. To provide for such and other cases the statute provides, that the court may, of its own motion, or upon the application of either party without the consent of the other, direct a reference to take an account, and report to the court thereon, either with or without the testimony, after interlocutory or final judgment, or where it is neces- sary to do SO', for the information of the court; and also tO' determine and report upon a question of fact, arising in any stage of the action, upon a motion, or otherwise, except upon the pleadings.* In an action triable by the court, without a jury, a reference may be made, to decide the whole issues, or any of the issues; or to report the referee's finding, upon one or more specific questions of fact, involved in the issue.5 Where a reference is made, as prescribed in the last section, to report upon a specific question of fact, involved in the issue, and the determination of one or more other issues is necessary, in order to enable the court to render judgment, they must be tried, either before or after the filing of the report, as the court directs, and either by a jurj', or by the court, vathout a jury, as the case requires. Where they are tried by a jury, application for judgment must be made upon the verdict and the report.* 3. Sullivan v. Sullivan, 41 N. Y. upon a motion or otherwise, except Super. 519. upon the pleadings, do not author- 4. Code of Civ. Proc, § 1015. ize a reference to obtain the opin- The provisions of section 1015 of ion of a referee upon questions of the Code of Civil Procedure, au- lavi' arising upon a motion. (Kelley thorizing a reference to determine v. Charlier, 18 Abb. N. C. 416.) and report upon a question of fact 5. Code of Civ. Proc, § 1013. arising in any stage of the action, 6. Code of Civ. Proc. § 1014. INTERLOCUTORY REFERENCES; DEFINITIONS, ETC. 1 33 Where a provision of this act authorizes the court to ap- prove an undertaking, or the sureties thereto ; or to make an examination or inquiry; or to appoint an appraiser, receiver, or trustee; it may direct a reference to one or more persons designated in the order, either to make the approval, exami- nation, inquiry, or appointment, or to report the facts to the court, for its action thereupon. And where, according to the practice of the Court of Chancery, on the 31st day of December, 1846, a matter was referable to the clerk, or to a master in chancery, a court having authority to act there- upon may direct a reference to one or more persons, desig- nated in the order, with the powers which were possessed by the clerk, or the master in chancery, except where it is otherwise specially prescribed by law.' 7. Code of Civ. Proc, § 827. See Supreme Court Rule 84, where it is directed that " in cases where no provision is made by statute, or by these rules, the proceedings shall be according to the customary practice as it formerly existed in the Court of Chancery or Supreme Court, in cases not provided for by statute or by the written rules of those courts." Section 827, by its language and position, has evi- dently nothing to do with the trial of issues. The reference thereby authorized is such as just pre- vious to the abolition of the Court of Chancery might have been made to a clerk or a master. Whatever may have been the early history of the office of master, it is well known that at the time referred to, evidence on an issue was not taken by a master but before an ex- aminer. A master exercises cer- tain judicial and executive powers. An examiner was little more than a scribe, writing down questions and answers. Whether a master might not do an examiner's work is immaterial to the question. For no such work as the taking of tes- timony on an issue is intended in this section. The taking of such evidence was not " a matter refer- able." The parties took their evi- dence before any examiner as they might choose. No reference was made, and indeed the words " a matter referable " would not in- clude an issue in chancery. (Farm- ers' Nat. Bank v. Houston, 8 St. Repr. 557; 44 Hun, 567.) It has been frequently held that a reference to ascertain and report the amount of an attorney's lien upon his client's cause of action and upon his papers, and to ascer- tain and report the amount of compensation to which the at- torney is entitled is a reference which, prior to December 31, 1846, would have been referred to the 134 LAW AND PRACTICE AS TO REFERENCES. § 71. When interlocutory reference ordered. — An inter- locutory reference may be ordered at any stage of an action or special proceeding.* They are entirely discretionary and may be made with or without the consent of the parties.' It is impracticable to enumerate all instances in which inter- locutory references have been or may be ordered, but some of the more important are: To take and state an account where an accounting is found necessary;" after foreclosure of a mortgage to determine who are holders of bonds se- cured by the mortgage;" to determine the value of the as- sets of a corporation;" to determine facts on motion ;'3 on motion for mandamus;'* for injunction ;'5 to cancel and set aside a judgment;'^ against an attorney for not paying clerk or a master in chancery. 13. Martin v. Hodges, 45 Hun, (Matter of Bennett, 21 Abb. N. C. 38; Vilas v. P. & M. R. R. Co., 238; Matter of Knapp, 85 N. Y. 123 N. Y. 440; 34 St. Repr. 67; 26 284; Amsdell v. Martin, 20 Week. Abb. N. C. lli; Dovale v. Acker- Dig. 370; Gillespie v. MulhoUand, man, 27 St. Repr. 895; 7 N. Y. 12 Misc. 40; Doyle v. Mayor, 26 Supp. 833. Misc. 61. See also Ackerman v. 14. People ex rel. Del Mar v. Ackerman, 14 Abb. 230; City of St. L. & S. F. Ry. Co., 44 Hun, Philadelphia v. Postal Tel. Co., i 552; 19 Abb. N. C. i. App. Div. 387; Niebuhr v. Schreyer, Where a mandamus was applied 18 St. Repr. 814; 2 N. Y. Supp. for, and the proof before the court 413.) was very conflicting as to the facts, 8. Code of Civ. Proc, § 1015. the court considered the case one 9. Code of Civ. Proc, §§ 827, where it was proper to appoint a 1013, 1014, 1015; Aldinger v. Pugh, referee to take proof of the facts 32 St. Repr. 513; 10 N. Y. Supp. and circumstances, in aid of the 684. conscience of the court. (Peo. ex 10. Camp v. IngersoU, 86 N. Y. rel. Sand v. Erster Zloczower 433; Peck V. Vandermark, 99 N. Y. Kranken, 38 Misc. 420.) 29; Zapp V. Miller, 109 N. Y. 51; 15. Continental S. S. Co. v. 14 St. Repr. yT. Clark, i How. (N. S.) 497; 7 Civ. 11. Central Trust Co. v. N. Y. Proc. Rep. 183; Stubbs v. Ripley, C. & N. R. R. Co., 42 Hun, 602; 39 Hun, 620. 18 Abb. N. C, 381; 4 N. Y. St. 16. Dwight v. St. John, 25 N. Y. Repr. 639; affg. 18 Abb. N. C. 64. 203; Demelt v. Leonard, 19 How. 12. Camp V. Ingersoll, 86 N. Y. 140; 11 Abb. 252. 433- WHEN INTERLOCUTORY REFERENCE ORDERED. 1 35 over moneys collected;''' to vacate an attachment;'^ to dis- charge an order of arrest. '^ On petition for sale of land of infant or lunatic, a reference is essential.^" A reference to determine controverted questions of fact upon a motion should be ordered only in exceptional and extraordinary cases, where the facts are complicated;^' and should not be ordered where no material fact is disputed ;^^ or where but a single issue of fact is presented, as to which the af^davits are fuU.^^ In an action for the foreclosure of a mortgage covering several parcels which have been transferred to differ- ent individuals since the giving of the mortgage, a reference may be ordered to determine priorities and report the order of sale.^* § 72. The order of reference and the hearing As the ref- eree in an interlocutory reference has no power beyond that expressly given, ^s it is quite necessary that the order or decree appointing him should distinctly and particularly state the full object and scope of the proceeding.^^ The referee 17. Barber v. Case, 12 How. 351. 21. Martin v. Hodges, 45 Hun, The City Court of New York has 38; Weinberger v. Met. Traction the same power over attorneys as Co., 63 App. Div. 240; 71 N. Y. other courts of record, and may, Supp. 289. under sections 827 and 1015 of the 23. Matter of Hanlein, 72 N. Code, refer the questions of fact Y. Supp. 433. arising on a summary proceeding 23. Buckholtz v. Florida East to compel payment of moneys col- Coast Ry. Co., 59 App. Div. 566; lected. (Gillespie v. Mulholland, 69 N. Y. Supp. 682. 8 Misc. sii; 59 St. Repr. 407; 28 24. Bard v. Steele, 3 How. no. N. Y. Supp. 754; affd., 12 Misc. 25. Sullivan v. Sullivan, 41 N. Y. 40; 66 St. Repr. 532; 33 N. Y. Super. 519; 52 How. 453; Ballard v. Supp. 33.) Burrowes, 25 N. Y. Super. 206; 18. Burnett v. Snyder, 48 N. Y. McCracken v. Valentine, 9 N. Y. Super. 342. 42. 19. Barron v. Sanford, 14 How. 26. Earle v. Earle, 93 N. Y. 104; 443; 6 Abb. 320, n.; Stelle v. Pal- affg. 48 N. Y. Super. 18; Swift v. mer, 7 Abb. 181. Swift, 88 Hun, 551; 68 St. Repr. 20. Matter of Valentine, 72 N. 749; 34 N. Y. Supp. 852. Y. 184; 3 Abb. N. C. 285, 1 3b LAW AND PRACTICE AS TO REFERENCES. must possess the same qualification as a referee to hear and determine all the issues/^ In case the order or decree direct- ing an interlocutory reference contains no provisions regu- lating the proceedings thereon, and no provision is made by statute or the rules of the court therefor, the hearing is to be brought on and conducted according to the customary practice as it formerly existed in the Court of Chancery.^* In case the time and place of hearing is not fixed by the or- der or decree under which the reference is made, it is the duty of the referee to fix the time and place of hearing,^^* and issue a summons or notice to attend at the time and place stated for the hearing/' A summons should not be 27. Code of Civ. Proc, § 1024; Supreme Court Rule 79. 28. Supreme Court Rule 84. 28a. It is the usual and proper practice for the referee to appoint in writing a time and place for the hearing, a copy of which should be served with or before the notice of hearing. (Sage v. Mosher, 17 How. 367; Stephens v. Strong, 8 How. 339.) Strict practice, how- ever, requires a summons instead of notice. 29. Quackenbush v. Leonard, 10 Paige, 131. " Where a matter is referred to a master, to examine and report thereon, on bringing the decree or order into his oiSce, he shall assign a day and place for hearing the parties, and give to the party bringing in such decree or order a summons for the adverse party to attend at the day and place so appointed. The summons shall be served on the adverse party or his solicitor such time, previous to the day appointed for hearing, as the master may deem reasonable and direct; taking into consideration the nature of the matters to be examined, and the residence of the parties. But the time of service, unless otherwise ordered by the court, shall not be less than two days, where the solicitor of the adverse party resides in the city or town where the hearing is to take place, and not less than four days where he resides elsewhere, not exceeding fifty miles from the place of hearing; nor less than six days if over fifty and not ex- ceeding one hundred miles; and not less than eight days where he resides more than one hundred miles from the place of hearing." (Chancery Rule 100.) The court may order the hearing to proceed on two days' notice, but if the order should prove too summary, the referee is not de- prived by it of the usual discretion vested in referees over hearings of this character, and he may adjourn the proceedings whenever found THE ORDER OF REFERENCE AND THE HEARING. I 37 issued, Upon a reference, until the decree or order directing such reference is actually entered and an authenticated copy brought to the referee. 3° This is his commission, and with- out it he should not proceed to act.^' As a general rule the party obtaining the order of reference is not only enti- tled to the prosecution thereof in the first instance,^^ but it is his duty to proceed thereunder." If he does not proceed with due diligence any other party or person interested may have leave to proceed, upon proper application therefor.^"* Before proceeding with the hearing the referee should take and subscribe the prescribed oath,35 but the taking of the oath may be waived^^ except where one of the parties is an infant or a defendant fails to appear.^' The order of reference, in all cases where the referee is to follow a special mode of procedure, should give full direc- necessary or advisable. (Stubbs son interested in the matter of the V. Ripley, 39 Hun, 624.) reference shall be at liberty to ap- The summons should be properly ply to the court, by motion or peti- underwritten, or the nature of the tion, to expedite the prosecution of reference to be proceeded in, or the decree or order. And after the the object of the attendance, should proceedings have been commenced be stated in the body of the sum- by the service of a summons to at- mons. (Manhattan Co. v. Evert- tend before the master, if the party son. 4 Paige, 276.) entitled to prosecute such decree 30. Chancery Rule lOo; Quacken- or order does not proceed with bush V. Leonard, 10 Paige, 131. due diligence, the master shall be 31. Bonner v. McPhail, 31 Barb, at liberty, upon the application of 106; Gerity v. Seegers & Guernsey any other person interested, either Co., 163 N. Y. 122. as a party to the suit or as coming 32. Chancery Rule lOO. in to prove his debt or establish 33. Quackenbush v. Leonard, 10 a claim under the decree or order, Paige, 131; Holley v. Glover, 9 to commit to him the prosecution Paige, 9. of the reference." (Chancery Rule 34. Holley v. Glover, 9 Paige, 9. loi.) " If the party who is entitled to 35. Code of Civ. Proc, § 1016. prosecute such decree, or order of 36. Exchange Fire Ins. Co. v. reference, does not procure and Early, 4 Abb. N. C. 78; Nason v. serve such summons within thirty Ludington, 55 How. 342; afltd., 56 days after the decree or order is How. 172. entered, any other party or per- 37. Id. 138 LAW AND PRACTICE AS TO REFERENCES. tions concerning the same. The referee may, however, regulate the procedure before him, as he is vested by the statute with ample discretionary powers.^^ In case the ref- erence is to take and report the evidence the referee may take all the evidence that is offered;'' he has no power to pass upon objections;*" and when objections are taken before such referee they must be renewed upon the trial, or they will not be available on appeal. '♦' But where the referee is appointed to determine and report upon questions of fact, he may decide upon the admissibility of evidence.'*^ A subpoena may be issued to secure the attendance of witnesses and the production of books and papers,'*' and in a proper case an order may be made by a referee for the production of papers before him** instead of resorting to a subpoena duces tecum.'*^ The chancery practice gave to the referee control over books and papers,*^ and the chancery 38. Stubbs V. Ripley, 39 Hun, (People ex rel. Jacobs v. Ball, 37 620. Hun, 245.) 39. Scott V. Williams, 23 How. 44. Code of Civ. Proc, §§ 867- 393; 14 Abb. 70. Where the referee 869. merely takes testimony and returns 45. Pruden v. Tallman, 6 Civ. it to the court, there is no trial. Proc. Rep. 360; Holmes v. Stietz, (Van Etten v. Hasbrouck, 4 St. id. 362. Repr. 803.) 46. Chancery Rule 103, as fol- 40. Fox V. Moyer, 54 N. Y. 125. lows: "When, by any decree or 41. Fox V. Moyer, 54 N. Y. 125. order of the court, books, papers, 42. Ayers v. Village of Ham- or writings are directed to be pro- mondsport, 11 St. Repr. 706; 13 duced before the master for the Civ. Proc. Rep. 236. purposes of such decree or order, 43. Code of Civ. Proc, § 1017; it shall be in the discretion of the Guinan v. Allan, 40 App. Div. 137. master to determine what books, If the reference is made in an ac- papers, or writings are to be pro- tion, the subpoena must be issued duced, and when and for how long out of the court. (Code, § 852.) they are to be left in his office; If in a special proceeding, the sub- or, in case he shall not deem it poena must be issued by and under necessary that they should be left the hand of the referee. (§ 854.) or deposited in his office, then he TAKING AND FILING THE TESTIMONY. 1 39 rule in that respect is deemed in force at the present time.'*'' The resignation of a referee to take proof of certain facts and report thereon to the court must be addressed to* the court; and an apphcation for the appointment of a new ref- eree must be made to the court under rule 37 of the General Rules of Practice.'*^ A referee appointed to take and report testimony with his opinion is vested with power to punish a witness for contempt in refusing to answer. "^^^ § 73. Taking and filing the testimony — Whenever it may appear to the court necessary, the order or decree making the reference may direct the order in which the witnesses shall be examined;*^ but if no specific directions are given, the referee may determine the order of proof.^° The examina- tion proceeds as in cases of a reference to hear and determine all the issues; and in all cases, except where the reference may give directions for the in- point out which of the several pro- spection thereof by the parties re- ceedings may properly be going quiring the same, at such time and on pari passu; and as to what par- In such manner as he shall deem ticular matters interrogatories for expedient." the examination of the parties ap- 47. Supreme Court Rule 84. pear to be necessary; and whether 48. Brady v. Kennedy, 65 App. the matters requiring evidence Div. igo; 72 N. Y. Supp. 507. shall be proved by affidavit or by 48a. People ex rel. Baldwin v. examination of witnesses; and in Miller, 9 Misc. i; 59 St. Repr. 702; the latter case, if necessary, to is- 29 N. Y. Supp. 305. sue his certificate for a commis- 49. Stubbs V. Ripley, 39 Hun, sion; and if the master shall think 620. it expedient so to do, he may then 50. Chancery Rule 102, as fol- or upon subsequent attendance, lows: "At the time and place ap- and from time to time, as circum- pointed in the summons for the stances may require, fix the time hearing of the parties, the master within or at which any proceeding shall proceed to regulate, as far as before him shall be had; and he may be, the manner of its execu- may proceed de die in diem, or by tion; as, for example, to state adjournment from time to time, as what parties are entitled to attend he may think proper." (See Story future proceedings, to direct the v. Brown, 4 Paige, 112.) necessary advertisements, and to I40 LAW AND PRACTICE AS TO REFERENCES. is to hear and determine and for computing the amount due in foreclosure cases, the testimony must be signed by the witnesses.^' and filed by the referee with his report.^^ In case some, but not all the parties fail to appear, the referee may proceed with the reference, and if they afterward ap- pear, it is within his discretion to open their default, and he may impose terms. '^^ § 74. The report and exceptions. — The report of the ref- eree must be filed with the testimony, and a note of the day of the filing shall be entered by the clerk in the proper book, under the title of the cause or proceeding, and the said report shall become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the fiHng of the same. If exceptions are filed and served within such time, the same may be brought to a hearing at any Special Term thereafter, on the notice of any party interested therein." 51. Supreme Court Rule 30. to do, considering the nature of the The provisions of this rule are case; and if he has proceeded ex imperative and must be complied parte, such proceedings shall not with. (Bowne v. Leveridge, 8 Abb. in any manner be reviewed by kim, N. C. 148, n. ; 2 Month. L. Bull. 87.) unless, upon a special application Where a witness fails to sign the to him for that purpose, by the testimony, the remedy is by mo- party who was absent, the master tion — exception to the report is shall be satisfied such party was not sufficient. (Pope v. Perault, not guilty of willful delay or negli- 22 Hun, 468.) gence, and thus only upon payment 52. Supreme Court Rule 30. of all costs occasioned by his non- 52a. Chancery Rule 104, as fol- attendance; such costs to be cer- lows: tified by the master at the time, " Where some, or one, but not and paid by the party or his solic- all of the parties do not attend the itor before he shall be permitted master at the time and place ap- to proceed on the warrant to re- pointed, whether the same is fixed view; and every summons or war- by the master personally or upon rant to attend before a master shall a summons or warrant, the master be considered peremptory." shall be at liberty to proceed, ex 53. Supreme Court Rule 30. parte, if he thinks it expedient so THE REPORT AND EXCEPTIONS. 141 The time for filing exceptions does not begin to run until the testimony is filed after being signed as provided by the rule.54 The purpose of exceptions is to bring up the merits of the controversy." Exceptions are necessary only where the referee decides some question, the decision of which is challenged ;5^ but there is no necessity for filing exceptions to a report of a referee who is appointed only to take the evidence and report his opinion,57 and exceptions to such a report are unavailing.s^ If exceptions are necessary and they are not filed as prescribed by the rule the report will become absolute.^' The court has the power to permit ex- ceptions to be filed nunc pro tunc.^° The time within which 54. Pope V. Perault, 22 Hun, 468. 55. Nat. State Bank v. Hibbard, 45 How. 280. 56. Doremus v. Doremus, 76 Hun, 337; 59 St. Repr. 324. 57. Matter of Attorney-General V. Continental Life Ins. Co., 64 How. 93. 58. Doremus v. Doremus, 76 Hun, 337; 59 St. Repr. 324. 59. Supreme Court Rule 30; Matter of Leffingwell, 30 Hun, 528; Rust V. Hauselt, 46 N. Y. Super. 22; 9 Reporter, 284; Catlin V. Catlin, 2 Hun, 378; James v. Horn, 19 App. Div. 259; 80 St. Repr. (46 N. Y. Supp.) 187; Mat- ter of Talmadge, 39 App. Div. 466; 91 St. Repr. (57 N. Y. Supp.) 427; afifd., 161 N. Y. 643; Bailey v. Car- ter, 34 Misc. 271; 103 St. Repr. (69 N. Y. Supp.) 617. The usual mode of reviewing or correcting a referee's report in all cases other than a report made upon the trial of issues is by taking exceptions to it; that is, by filing exceptions with the clerk within eight days after notice received of the filing of the report, pursuant to the 32d (now 30th) rule of the court, cor- responding to the iioth Chancery Rule. (l Van Santvoord's Eq. Pr, 565.) The lioth Chancery Rule is as follows: "After the report is filed, either party may have an order of course to confirm the same, unless cause to the contrary thereof be shown in eight days; and if no ex- ceptions are filed and served in that time, the order shall become absolute, of course, without notice or further order; or either party may file exceptions, and have an order of course to confirm the re- port so far as not excepted to, and with the like efiect." An elaborate note upon the practice as to references of this nature, the necessity of exceptions to the report, the eflfeot of the re- port, and the confirmation of course for omission to except may be found under Ward v. Ward (29 Abb. N. C. 260). 60. Rush v. Hauselt, 46 N. Y. Super. 22; Matter of Attorney-Gen- 142 LAW AND PRACTICE AS TO REFERENCES. exceptions are to be filed begins to run when notice of the fihng of the report is served.^' Where a reference is made as prescribed in section 1015 of the Code of Civil Procedure, the reference may be terminated if the referee's report is not delivered or filed within sixty days after final submission of the matter ;^^ but a reference to take proof in a special pro- ceeding does not fall within the scope of this section, and is not terminable in the mariner therein prescribed.^^ § 75. Hearing exceptions and confirmation of the report. — After the report and testimony is filed, notice of motion for confirmation must be given. This is upon the usual notice of eight days.^'* If exceptions are filed and served within the time prescribed the same may be brought to a hearing at any Special Term thereafter, on the notice of any party interested therein.'^s a notice of motion to confirm a report of a referee, served before the time for filing excep- eral v. Continental Life Ins. Co., " 2. That in all cases where any of 64 How. 93. the defendants appear so as to be 61. Bailey v. Carter, 34 Misc. entitled to notice, such report can- 271 ; 103 St. Repr. (69 N. Y. Supp.) not be confirmed until eight days 617. after service of notice of filing the 62. Code of Civ. Proc, § 1019. same. 63. Matter of Bennett v. Pitt- " 3. That all the parties who have man, 48 Hun, 612; 15 St. Repr. appeared in the cause or proceed- 976; 21 Abb. N. C. 238; I N. Y. ing may consent, in writing, to Supp. 27. waive the delay of eight days, and 64. Somers v. Milliken. See have the same confirmed at once. Voorhees Code of Procedure (loth " 4. That in cases where no one ed.), p. 707. appears for the defendant, the re- 65. Supreme Court Rule 30. In port may be presented to the court Somers v. Milliken (last above) for the final order of confirmation Ingraham, J., said: " I have con- and judgment without waiting eight suited with some of my brethren, days.'' (See also Brown v. ^layor, and we are of the opinion: g Hun, 587; Matter of Guardian " I. That all such reports must be Savings Inst., 9 Hun, 267.) filed, and a note of the day of the filing made by the clerk. CONFIRMATION OF REPORT AND REVIEW. I43 tions has expired, is premature, and the motion must be denied.*^ In a reference to take evidence as to facts, for the information of the court, all questions arising upon the hearing are to be determined by the court upon motion for confirmation, and no exceptions to such report are required to be filed.*' Confirmation of such a report without regular notice is, therefore, irregular.** Upon the motion to con- firm, no objections will be considered other than those to which exceptions have been filed.*' The mode of obtaining confirmation of the report is not the same in all cases.'" A report does not require confirmation where it is not in- tended to be made the foundation of any future discretion- ary act of the court;'' otherwise it must be confirmed.''^ Motion for confirmation must be made at Special Term and not at Chambers. '3 The court always has power to direct the referee to take further or more specific proof.'-* § 76. Review of order of confirmation. — An appeal from an order confirming, or refusing to confirm, the report, may be taken in a case authorized by section 1347 of the Code of Civil Procedure. '5 In an action triable by the court, where a reference has been made, to report upon one or more spe- 66. James v. Horn, 19 App. Div. 72. Bantes v. Brady, 8 How. 216; 259; 80 St. Repr. (46 N. Y. Supp.) Belmont v. Smkh, 8 N. Y. Super. 187. 675; II N. Y. Leg. Obs. 216. 67. Martin v. Hodges, 45 Hun, 73. Empire Build., etc., Assn. v. 38; Ward V. Ward, 29 Abb. N. C. Stevens, 8 Hun, 515; Matter of 256, 259. Guardian Savings Inst., 9 Hun, 267; 68. Sproull V. Star Co., 27 Misc. Brown v. Mayor, id. 587; Sproull 27; 90 St. Repr. (56 N. Y. Supp.) v. Star Co., 45 App. Div. 575; 95 looi. St. Repr. (61 N. Y. Supp.) 404; 7 69. People v. Empire Mut. Life N. Y. Annot. Cas. 172. Ins. Co., Daily Reg., Oct. 19, 1,883; 74. N. Y. & W. U. Tel. Co. v. Belmont v. Smith, 8 N. Y. Super. Jewett, 16 Week. Dig. 419; Hoyt 67s; II N. Y. Leg. Obs. 216. v. Quicksilver Mining Co., 23 Hun, 70. Griffing v. State, S How. 205. 199. 71. Id. 75. Code of Civ. Proc, § 1316. 144 LAW AND PRACTICE AS TO REFERENCES. cific questions of fact involved in the issue, a motion for a new hearing may be made at a Special Term, at any time before the hearing of a motion for final judgment, or the trial of the remaining issues of fact. The motion must be made upon affidavits, unless the court, or a judge thereof, directs a case to be prepared and settled.''^ Where a reference, or wrrit of inquiry, directed as pre- scribed in section 1015, or section 1215, of the Code, ha? been executed, either party may apply for an order, direct- ing a new hearing, or a new writ of inquiry, upon proof, by affidavit, that error was committed, to his prejudice, upon the hearing, or on the report, or upon the execution of the writ, or in the inquisition. In a proper case, the applica- tion may be granted, after judgment has been entered. In that case, the judgment may be set aside, either then or after the new hearing, or the execution of the new writ, as justice requires.'^ 76. Code of Civ. Proc, § 1004. substantia! and as justice requires; 77. Code of Civ. Proc, § 1232. mere criticisms of the acts of the This section relates to new hear- referee are not such objections. ings upon objections which are (Fischer v. Raab, 57 How. 87.) INTERLOCUTORY REFERENCES IN PARTICULAR CASES. 1 45 CHAPTER 11. INTERLOCUTORY REFERENCES IN PARTICULAR CASES. Section ^T. How far compulsory. Reference to take and state an account. References for information of the court. References of questions of fact arising on motion. References to take depositions to be used on motion. References to examine a party or witness before trial. References to take proof on application for judgment by default. References to ascertain damages sustained by an injunction. § 77. How far compulsory. — In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section, to decide the whole issue, or any of the is- sues; or to report the referee's finding, upon, one or more specific questions of fact involved in the issue.' The court may likewise, of its own motion, or upon the application of either party without the consent of the other, direct a ref- 78. 79- 80. 81. 82. 83. 84. 1. Code of Civ. Proc, § 1013,- last sentence. This section is made applicable to the City Court of New York. (Code of Civ. Proc, § 3160, subd. 2, as amended by L. 1902, ch. 515.) In this section the words " as prescribed in this section " refer only to the clause " where the trial will require the examination of a long account," and give no power to order a compulsory reference in any other cause triable by the court. (Barnes v. West, 16 Hun, 68; Dane v. Liverpool, London, & Globe Ins. Co., 21 Hun, 259.) Where a complaint alleged the delivery by plaintiff to the defend- ant at various times within a period of three years, of a large number of items of goods and various 10 items of work done and services rendered, and the answer admitted that plaintiff furnished certain goods within the time mentioned, but denied all other allegations of the complaint, it was held that the issues thus raised were referable under section 1013 of the Code of Civil Procedure; but the issues raised by a counterclaim and reply being such as entitled the defend- ant to a trial by jury, they must be so tried, and an order of refer- ence of the whole issues was modi- fied by referring the issues raised by the complaint and the defenses to it, leaving the issue raised by the counterclaim and the reply to be tried by a jury in the usual way. (Hoffman House v. Hoffman House Cafe, 36 App. Div. 176.) 146 LAW AND PRACTICE AS TO REFERENCES. erence to take an account, and report to the court thereon, either with or without the testimony, after interlocutory or final judgment, or where it is necessary to do so, for the in- formation of the court; and also to determine and report upon any question of fact, arising in any stage of the action, upon a motion, or otherwise, except upon the pleadings.'' The court may also order a reference in special proceed- ings as in applications to vacate assessments ;3 in proceedings for contempt;"* in a proceeding against an attorney for mis- conduct in failing to pay over money collected by him;5 in proceedings for closing up of insolvent mutual insurance companies;* concerning claims of a receiver of insolvent cor- porations; concerning an attorney's lien;^ on petition for sale of lands of infant or lunatic.^ § 78. Reference to take and state an account A refer- ence to take an account, as now authorized by section 1015 of the Code of Civil Procedure, appears to have been exten- sively employed in the Court of Chancery.^" In actions in- volving an accounting it is required that every question affecting the rights of the parties upon the main issue shall be first settled by an interlocutory decree before the account is stated, or the reference therefor is ordered." This being 2. Code of Civ. Proc, § 1015. 8. Marshall v. Meech, 51 N. Y. 3. Matter of Bohm, 4 Hun, 558. 140. 4. Davies v. Davies, 20 Abb. N. 9- Matter of Valentine, 72 N. Y. C. 170. 184; Matter of Spellman v. Terry, 5. Matter of Gillespie v. Mul- 74 N. Y. 448. holland, 8 Misc. 511; 59 St. Repr. 10. i Van Santvoord's Eq. Pr. 467; 28 N. Y. Supp. 754; affd., 12 522. Misc. 40; 66 St. Repr. 532; 33 N. Y. H- N. Y. Bank Note Co. v. Supp. 33. Hamilton Eng. Co., 56 App. Div. 6. Sands v. Kimback, 27 N. Y. 488; citing Mundorff v. Mundorff, 147. I Hun, 41. 7. Wickham v. Frazee, 13 Hun, 431- REFERENCE TO TAKE AN ACCOUNT. 1 47 decided, the court must direct in its decree the matters which shall be embraced in the accounting, as may be required by the circumstances of the particular case.'^ The practice upon the hearing before the referee is assimilated to the former chancery practice, which has been held applicable to such proceeding, and which the Code has not changed. '^ Upon such accounting the chancery practice required that the party ordered to account should exhibit his accounts to the master.''* The account must cover the whole period for which it is ordered, set out the state of the account, cov- ering such period, and be verified by oath of the party present- ing it. '5 When the account is presented the opposite party 12. N. Y. Bank Note Co. v. This rule has been frequently Hamilton Eng. Co., 56 App. Div. recognized by the Supreme Court, 488. and no change has been effected by 13. Id.; Mundorfif v. MundorfJ, the Code of Civil Procedure. I Hun, 41; Palmer v. Palmer, 13 (Hathaway v. Russell, 45 N. Y. How. 363; Ketcham v. Clark, 22 Super. 538, 542.) On the con- Barb. 319. trary the practice is authorized 14. Chancery Rule 107, as fol- and directed by section 827 of the lows: "All parties accounting be- Code of Civil Procedure and Su- fore a master shall bring in their preme Court Rule 84. accounts in the form of debtor and 15. 2 Barb. Ch. Pr. 505-515; creditor; and any of the other Story v. Brown, 4 Paige, 112; Ben- parties who shall not be satisfied son v. Le Roy, i Paige, 122; Wig- with the accounts so brought in gin v. Gans, 6 N. Y. Super, 646. shall be at liberty to examine the Under the present practice, fol- accounting party upon interroga- lowing the chancery rule above tories, as the master may direct, noted, a plaintifT has the right to On any reference to take or state the formal bringing in by defend- an account, the master shall be at ant of the account in the form of liberty to allow interest as shall debit and credit and duly verified, be just and equitable, without any and to his examination on inter- special directions for that purpose, rogatories. (Hathaway v. Russell, unless a contrary direction is con- 45 N. Y. Super. 538; Spooner v. tained in the order of reference. Le Fevre, 2 T. & C. 666.) It And every charge, discharge, or would seem, however, that the state of facts brought in before a present mode of examination by master shall be verified by oath as oral questions and answers is far true, either positively, or upon in- preferable to the old system of formation and belief." written interrogatories and written 14^ LAW AND PRACTICE AS TO REFERENCES. is at liberty to surcharge the same with any sums which he can prove ought to be added thereto, and he may ex- amine the party presenting the account for that purpose. The party presenting the account may also show matters, within the scope of the accounting, which tend to relieve him from the apparent amount which would otherwise be charged against him.'^ The referee appointed to take the account has no control over the issues between the parties. His duty is simply to take and state the account.'^ Objec- tions to the method of accounting should be taken before the referee and exceptions to the report may embody such objections.'* answers, and, in fact, it is gener- tion of a party before him is insuf- ally used. ficient, such party shall be at lib- 16. N. Y. Bank Note Co. v. erty to file exceptions thereto with Hamilton Eng. Co., 56 App. Div. the master; and without any order 488. of reference, he may take out a 17. Cameron v. Freeman, 18 warrant for the master to examine How. 310; ID Abb. 333. "The the matter upon such exceptions, master shall be at liberty to ex- a:nd the master shall have authority amine any witness or party, or to expunge any such matter which any creditor or other person com- he shall find to be scandalous or ing in to claim before him, either impertinent. And where the mat- upon written interrogatories or ter is excepted to as scandalous or viva voce, or in both modes, as the impertinent, if the master disallows nature of the case may appear to the exceptions, his decision thereon him to require; the examination or shall be final as to the exceptions evidence being taken down at the which are disallowed; but this shall time by the master or by his clerk not preclude the party from insist- in his presence and preserved, in ing upon the impertinence at the order that the same may be used hearing of the cause, or upon any by the court if necessary. (Chan- subsequent proceeding founded on eery Rule 105.) the master's report upon the refer- 18. Ketcham v. Clark, 22 Barb, ence, or upon the taxation of the 319. general costs of the cause, or of If a party wishes to complain of the reference. And in deciding on any matter introduced into any the sufficiency or insufficiency of state of facts, affidavit, or other the examination of a party, or of proceedings before the master, on an answer to a bill, the master shall the ground that it is scandalous or always take into consideration the impertinent, or that any examina- relevancy or materiality of the REFERENCES FOR INFORMATION OF THE COURT. I49 The referee's report should state distinctly all the items allowed, '9 and separate reports may, from time to time, be made, as the referee may deem expedient. ''* § 79. References for information of the court — The court may, of its own motion, or upon application of either party, direct a reference, where it is necessary to do- so, for the information of the court.^" Beyond this statutory provision, the court, by virtue of its general powers, has inherent au- thority to refer summary applications made to it, for the purpose of taking such proof as it may require to enable it to pronounce an intelligent judgment on their merits.^' This provision of the statute is applicable in special proceed- ings as well as in actions, ^^ and rule 30 of the General Rules of Practice has no application to references made for the purpose of informing the court to enable it to determine questions pending before it,^' fhe cases in which references statement or question referred to such certificate as he thinks fit with in the exception. On exceptions respect to the state of the assets; to the master's report, or to his and any person interested shall certificate of the sufficiency or in- thereupon be at Hberty to apply to sufficiency of an examination, the the court, as he shall be advised." parties shall be confined to the ob- (Chancery Rule 108.) jections taken before the master. 20. Code of Civ. Proc, § 1015.. (Chancery Rule 106.) 21. Matter of Bohm, 4 Hun, 558; 19. Spooner v. Le Fevre, 2 T. & Sutton v. Davis, 6 Hun, 237. C. 666. In Dwight v. St. John (25 N. Y., 19a. Chancery Rule 108, as fol- at p. 205) it was said: " Without lows: "In all matters referred to the Code, the court always had the a master, he shall be at liberty, right to refer, to take proofs on upon the application of any party matters on which it desired fuller interested, to make a separate re- information before proceeding." port or reports from time to time, 22. Matter of Bohm, 4 Hun, 558. as he shall deem expedient; the 23. Martin v. Hodges, 45 Hun, costs of such separate reports to be 38; Patten v. BuUard, 3 St. Repr. in the discretion of the court. And 735; aflfd., 118 N. Y. 669; Rovnianek where the master shall make a v. Kossalko, 61 App. Div. 486; 104 separate report of debts and lega- St. Repr. (70 N. Y. Supp.) 36. cies, he shall be at liberty to make In a motion pending before the 150 LAW AND PRACnCE AS TO REFERENCES. of this nature may be made are so numerous and varied, that no attempt will be made to name them here. The jurisdic- tion of the referee in such cases is limited to the powers conferred upon him by the order of appointment.^'* A ref- eree appointed to take evidence should take all that is ofifered and leave it to the' court to determine what is or is not competent. ^5 a reference to determine the amount of the lien of an attorney, upon substitution of another, though in form to hear and determine, is in fact to take evidence and report, and the Special Term and appellate court will examine the record to determine^ what is a fair and reason- able compensation.^^ Unless an oath is waived by the par- ties the referee should be sworn and the oath should' be filed or delivered with his report.^' § 80. .References of questions of fact arising on motion.— The Code of Civil Procedure authorizes a reference to deter- mine and report upon a question of fact arising upon a motion,^* but such a reference should only be resorted to when it is absolutely necessary to determine questions of fact which are of vital importance arising upon motions be- Special Term, where a reference is 34. Sullivan v. Sullivan, 41 N. Y. ordered in aid of the court, a ref- Super. 519; 52 How. 453. eree's report, if filed under the pro- 35. Scott v. WiUiams, 23 How. visions of the rule, would stand 393; 14 Abb. 70. confirmed if no exceptions were 26. Dean v. Driggs, 82 Hun, 561; filed after the expiration of eight 31 N. Y. Supp. 548; aflfd., 145 N. Y. days. But this would not determine 595. the motion, for that would still be 27. Code of Civ. Proc, § 1016; pending before the Special Term, Exchange Fire Ins. Co. v. Early, 4 and the court would in nowise be Abb. N. C. 78; 54 How. 279. bound by the report and draw its 28. Code of Civ. Proc, § 1015; own conclusions from the evidence. Aldinger v. Pugh, 32 St. Repr. 513; (Martin v. Hodges, 45 Hun, 38; 10 N. Y. Supp. 684. Rovnianek v. Kossalko, 61 App. Div. 486; 104 St. Repr. 36.) REFERENCES FOR INFORMATION OF THE COURT. I5I fore the court,^' and where the facts are complicated.^" A reference should not be ordered on a motion where the facts are undisputed, or where but a single issue of fact is pre- sented, as to which the affidavits are full.3' Where the reference is directed to determine and report upon questions of fact arising upon a motion, it is the trial of the questions so referred, and the referee has power to and should decide upon the admissibility of evidence.^^ Where a reference is made on a motion, " to take proof of the matters in contro- versy herein and to report the testimony taken, to the court," there is no trial in any true sense.^^ Even where the referee is directed to determine and report upon questions of fact arising upon the motion, his findings and determination are not conclusive upon the court, and may be adopted or dis- regarded. ^^ Upon a practice motion it has been held that 29. Wamsley v. H. L. Horton & expense of such references is always Co., 68 Hun, 549; 52 St. Repr. 767; great — in many instances largely 23 N. Y. Supp. 85. exceeding the value of the real sub- A reference upon a motion is fre- ject-matter in controversy, and this quently a great abuse of the dis- expense is necessarily a great hard- cretion vested in the court by this ship which is imposed upon the de- section (1015), as it requires large feated party and sometimes upon expenditures of money in the shape the successful party.'' of referees' and stenographers' fees, 30. Weinberger v. Metropolitan and to procure the attendance of Traction Co., 63 App. Div. 240; 71 counsel, which are utterly dispro- N. Y. Supp. 289. portionate to the importance of the 31. Buckholtz v. Florida East questions involved, either in the Coast Ry. Co., 59 App. Div. 566; 69 action or upon the motion. (Id.) N. Y. Supp. 682; Matter of Han- In Woodward v. Musgrave (14 lein, 72 N. Y. Supp. 433. App. Div. 291; 43 N. Y. Supp. 830) 32. Ayers v. Village of Ham- the court said: "The order of ref- mondsport, 11 St. Repr. 706; 13 Civ. erence was entirely unnecessary in Proc. Rep. 236. the first instance and was improper. 33. Van Etten v. Hasbrouck, 4 Such order should not be made ex- St. Repr. 803. cept in extreme cases where large 34. Ayers v. Village of Ham- interests are involved, and it is im- mondsport, 11 St. Repr. 706; 13 Civ. possible to reach a conclusion upon Proc. Rep. 236; Marshall v. Meech, the papers before the court. The Si N. Y. 140. The report is to be 152 LAW AND PRACTICE AS TO REFERENCES. the court has no power to make an order of reference to hear and determine. The only order which can be made is to direct a referee to take the testimony and report with his opinion.35 The court may order the reference upon its own motion, or upon the application of either party.^^ considered by the court with the other proof in the case — the ref- eree having no power to decide the motion. (Woodward v. Musgrave, 14 App. Div. 291; 43 N. Y. Supp. 830; ^^ St. Repr. 830.) 35. Matter of Lord, 81 Hun, 590. 36. Code of Civ. Proc, § 1015. Upon the hearing of a motion for mandamus to compel the transfer agents of a foreign corporation to allow the inspection of the trans- fer-book by certain stockholders, the court may, when desiring fuller information before proceeding, or- der a reference to take proof of the facts and circumstances alleged in the affidavits presented by the re- spondents, and direct that the per- sons making the same appear be- fore the referee for examination. (People ex rel. Del Mar v. St. Louis & S. F. Ry. Co., 44 Hun, 552; 19 Abb. N. C. I.) A reference to determine and re- port facts arising upon a motion has been authorized in the follow- ing, among other cases: On mo- tion to vacate an attachment (Kil- lian V. Washington, 2 Code Rep. 78); to vacate an order of arrest (Barron v. Sanford, 6 Abb. 320; 14 How. 443; Stelle v. Palmer, 7 Abb. 181); to vacate assessment for local improvements (Matter of Bohm, 4 Hun, 558; People ex rel. Geery v. Brennan, 45 Barb. 344); in condem- nation proceedings (Matter of Sheepshead, etc., R. R. Co., s Week. Dig. 488) ; in habeas corpus, where issue of fact is raised by conflicting affidavits (People ex rel. Keator v. Moss, 6 App. Div. 414; 39 N. Y. Supp. 690; Matter of Dixon, 11 Abb. N. C. 118; 4 Month. Law Bull. 84) ; in proceedings against an at- torney to compel payment of money collected (Matter of Fincke, 6 Daly, iii; Taylor Iron & Steel Co. v. Higgins, 49 St. Repr. 645; 66 Hun, 626; 20 N. Y. Supp. 746; 137 N. Y. 605; Gillespie v. Mulholland, 8 Misc. Sii; 59 St. Repr. 407; 28 N. Y. Supp. 754; afifd., 12 Misc. 40; 66 St. Repr. 532; 33 N. Y. Supp. 33); upon application of creditors to re- move a trustee or assignee (Matter of Mellen, 45 St. Repr. 349; 18 N. Y. Supp. S15; Matter of Lord, 81 Hun, 590; (>}, St. Repr. 254; 30 N. Y. Supp. 1117). The court may order a reference upon motions affecting judgments where it is necessary to obtain facts which are not fully shown by the papers. (Martin v. Hodges, 45 Hun, 38; 9 St. Repr. 423; 27 Week. Dig. 47; Dwight V. St. John, 25 N. Y. 203; Dovale v. Ackerman, 27 St. Repr. 89s; 7 N. Y. Supp. 833; Kinney v. Meyer, 32 St. Repr. 545; 10 N. Y. Supp. 448; Munn v. Barnum, 2 Abb. 409.) REFERENCES TO TAKE DEPOSITION; ON MOTION. 1 53 § 81. References to take depositions to be used on motion. — " Where a party intends to make or oppose a motion in a court of record other than a court specified in subdivisions sixteen, seventeen, eighteen or nineteen of section two of this act, and it is necessary for him to have the afifidavit or deposition of a person not a party, to use upon the motion, the court or a judge authorized to make an order in the case may in its or his discretion make an order appointing a referee to take the deposition of that person. The order must be founded upon proof by affidavit that the applicant intends to make the motion, or the notice of motion has been given v\rhich the apphcant intends to oppose. The affi- davit must specify the nature of the action and must show that the affidavit or deposition is necessary thereon and that such person has refused to make an affidavit of the facts which the apphcant verily believes are within his knowledge. If the defendant has appeared in the action and the applica- tion is made on the part of the plaintiff, at least one day's notice of such application must be given to the attorney of the defendant, and if the application is made on the part of the defendant, similar notice must be given to the attorney of the plaintiff. The person to be examined may be sub- poenaed and compelled to attend as upon the trial and may be cross-examined by the party on whose attorney the notice has been served. The deposition must be taken by question and answer and be subscribed by the witness, and must be delivered to the attorney for the party who procured the order, unless such order provides for a different disposition thereof.37 When an affidavit of a person is desired it should 37. Code of Civ. Proc, § 885. erence to those subdivisions of sec- The " subdivisions sixteen, sev- tion 2 of the Code as they were enteen, eighteen and nineteen of numbered previous to the amend- section two of this act," have ref- ment of said section 2, by chapter 154 LAW AND PRACTICE AS TO REFERENCES. be drafted and submitted to the witness with a request that he verify it, before applying for an order of reference,^^ un- less he refuses to make any aiifidavit whatever.^' The provi- sions of this section are applicable in a case, where the pub- lisher of a newspaper refuses to give an affidavit of publica- tion of a legal notice;*" a deposition may also be taken under this section, to be used on an application for a warrant of attachment;*' proof of levy under an attachment may also be secured under this section by an order for the examina- tion of the sherifif making the levy.*^ The deposition of a party to be used on a motion cannot be taken under this sec- tion ;*3 nor can an order be granted upon the apphcation of any one not a party to the action.** The examination of a witness upon the general merits of the action is not author- 946, Laws of 189s; such subdivisions are now numbered 10, 11, 12, and 13, and the courts referred to are the Mayor's Court of the city of Hud- son, the Recorder's Court of the city of Utica, the Recorder's Court of the city of Oswego, and the Justice's Court of the city of Albany (now City Court of Albany. The affidavit on application for the order must specify the nature of the motion, that the person sought to be examined has refused to make affidavit of the facts within his knowledge, and that the deposition is necessary. (Williams v. Western Union Tel. Co., 3 Civ. Proc. Rep. 448; Moses V. Banker, 30 N. Y. Super. 131; 34 How. 212.) The moving papers on the application must disclose the necessity for it, by a statement of facts and circum- stances which, in the discretion of the court, will authorize the ap- pointment of a referee. (Cockey V. Kurd, 14 Abb. [N. S.] 183; 36 N. Y. Super. 42; 45 How. 70; revg. 43 How. 140; 12 Abb. [N. S.] 307; Dauchy v. Miller, 16 Abb. CN. S.] 100; Matter of Bannister, i Law Bull. 9.) 38. Erie R. R. Co. v. Gould, 14 Abb. (N. S.) 279; Fisk v. Chicago, R. L & P. R. R. Co., 3 Abb. (N. S.) 430; Hudson R. R. R. Co. v. Kay, 14 Abb. (N. S.) 190. 39. Erie R. R. Co. v. Gould, 14 Abb. (N. S.) 279. 40. Eberle v. Krebs, 50 App. Div. 450; 98 St. Repr. (64 N. Y. Supp.) 246. 41. Allen v. Meyer, y^ N. Y. i. 43. National Broadway Bank v. Barker, 38 St. Repr. 597; 20 Civ. Proc. Rep. 338; 14 N. Y. Supp. 529. 43. People ex rel. Harriman v. Paton, s ft. Repr. 316; 20 Abb. N. C. 172; Stubbs V. Stubbs, 7 St. Repr. 282; King v. Leighton, 58 N. Y. 383. 44. Attorney-General v. Cont. L. Ins. Co., 4 Civ. Proc. Rep. 214. REFERENCES TO TAKE DEPOSITION; ON MOTION. 155 ized.*5 While a party who intends to make a motion may ■obtain an order under this section for the purpose of obtain- ing the deposition of a person not a party to the action, there is no authority for the isssuance, under such order, of a subpoena duces tecum which would compel the production of books and papers.'*^ The examination of books and papers is not allowable under this section ;'*7 nor a general examination with cross-examination;*^ but all legal and proper questions must be answered on pain of contempt.'*' The order will be vacated only when it appears either that the order is unauthorized or that a legitimate use of the pro- cess of the court is not the object for which the order was obtained,^" and a motion to vacate the order can be made only by the witness whose deposition is sought,^' but not then if he has appeared and submitted to partial examina- tion.'^ " Where the person to be examined * * * is a resi- dent of the state, he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business in person. Where he is not a resident, he shall not be required to attend in any other county than that wherein he is served with a subpoena, unless for special reasons, stated in the affidavit, the order otherwise directs." " 45. Dauchy v. Miller, 16 Abb. (N. 50. Moses v. Banker, 30 N. Y. S.) 108. Super. 131; 34 How. 212. 46. Wallace v. Baring, 2 App. 51. Ramsey v. Gould, 39 How. Div. soi; 74 St. Repr. 425; 37 N. Y. 62; 8 Abb. (N. S.) 174; 57 Barb. Supp. 1078; 3 N. Y. Annot. Cas. 16. 398. 47. Fisk V. Chicago, R. I. & P. 53. Erie R. R. Co. v. Champlain, R. R. Co., 3 Abb. (N. S.) 430. 3S How. 74- 48. Erie R. R. Co. v. Gould, 14 53. Code of Civ. Proc, § 886; Abb. (N. S.) 279. Gusstaf v. American SS. Co., 4 Civ. 49. Clark v. Brooks, 26 How. Proc. Rep. 243; Witcher v. Tribune 254. Assn., 20 Civ. Proc. Rep. 283; 38 St. Repr. 364. 156 LAW AND PRACTICE AS TO REFERENCES. § 82. References to examine a party or witness before trial. — The Code of Civil Procedure provides for a reference to examine a party before trial jS'* or of a person not a party to an action, whose testimony is material." The examination of a party or an expected party may be made for the purpose of obtaining facts necessary to enable the applicant to frame a complaint, 5^ or to procure the testimony of an adversary which is necessary for use upon the trial;" but this latter provision does not authorize the examination of a witness, to enable the applicant to frame a complaint in an action which he has not yet commenced,^^ nor to determine who is a proper party to be made defendant.'*^ This section is peremptory and must be enforced. An order which vio- lates it will be set aside (Marsh v. Woolsey, 14 Hun, i); and where the affidavit shows that the party to be examined is a nonresident, the order should specify the place for examination, to show a com- pliance with this section. (Dun- ham V. Mercantile Mut. Ins. Co., 44 N. y. Super. 387.) 54. Code of Civ. Proc, § 870. The examination of a party to an action before trial, at the instance of an adverse party, under section 870 et seq., of the Code of Civil Procedure, is a matter of absolute right, and no longer rests in dis- cretion. (Ludewig v. Pariser, 54 How. 498.) The object of allowing an ex- amination of the adverse party is to ascertain facts and circumstances either within the knowledge of the parties to the subject of the action and about which there should be no controversy, or which are neces- sarily within the knowledge of the defendant and essential to the main- tenance of the action as existing, and as alleged. (Glen Cove Mfg. Co. V. Sutro, 24 St. Repr. 1004; 6 N. Y. Supp. 384-) 55. Code of Civ. Proc, I 871. 56. Matter of Darling, 31 Misc. 543; 64 N. Y. Supp. 793. 57. Cahill v. Kurscheedt, 30 Misc. 833; 61 N. Y. Supp. 1 100. In this case the court said: "It seems to us that sections 870, 872, and 873 of the Code of Civil Pro- cedure were enacted especially to have a defendant testify in a plain- tiff's behalf before trial, when the information sought for is wholly, only, and solely known to him. 58. Matter of Anthony, 42 App. Div. 66; 58 N. Y. Supp. 907; Mat- ter of Bryan, 3 Abb. N. C. 289; Long Island Bottlers' Union v. Bottling Brewers' Pro. Assn., 65 App. Div. 459; 72 N. Y. Supp. 976. 58a. Matter of Schoeller, 74 App. Div. 347; 77 N. Y. Supp. (iii St. Repr.) 614. EEFERENCE TO EXAMINE PARTY, ETC., BEFORE TRIAL. 1 5/ The order for the examination of a party or witness under the provisions of sections 870 and 871 of the Code of Civil Procedure must be based upon an affidavit of the applicant, and may be granted by a judge of the court in which the action is pending; or, if it is pending in the Supreme Court, by a county judge; or, if an action is not pending, but is ex- pected to be brought, by a judge of the Supreme Court, or by a county judge." The judge to whom such an affidavit The plaintiff should be allowed to examine each adverse and unfavor- able witness before trial, just as he would usually examine a favorable witness out of court, so that, upon the trial, he may know just what testimony to expect from such wit- ness." (See also Matter of An- thony, 42 App. Div. 66; 58 N. Y. Supp. 907.) 59. Code of Civ. Proc, § 872, as follows: " The person desiring to take a deposition as prescribed in this article, may present to a judge of the court in which the action is pending; or, if it is pending in the Supreme Court, to a county judge; or, if an action is not pending, but is expected to be brought, to a judge of the Supreme Court, or to a county judge, an affidavit, SBtting forth as follows: " I. The names and residences of all the parties to the action, and whether or not they have appeared, and if either of them has appeared by attorney, the name, and the resi- dence or office address of the at- torney; or, if no action is pending, the names and residences of the ex- pected parties thereto. " 2. If an action is pending, the nature of the action, and the sub- stance of the judgment demanded, and if the application is made by the defendant before answer, or by either party after answer, the nature of the defease. " 3. If no action is pending, the nature of the controversy which is expected to be the subject thereof. "4. The name and residence of the person to be examined, and that the testimony of such person is material and necessary for the party making the application, or the prosecution or defense of such action, and if the action is to re- cover damages for personal in- juries, that the defendant is igno- rant of the nature and extent of such personal injuries; and, at the option of the applicant, the place where he is sojourning, or where he regularly transacts business. " 5. If an action is pending, that the person to be examined is about to depart from the state, or that he is so sick or infirm as to afford reasonable ground to believe that he will not be able to attend the trial; or that any other special cir- cumstances exist which render it proper that he should be examined as prescribed in this article. But this subdivision does not apply to a case where the person to be ex- amined is a party to the action. 158 LAW AND PRACTICE AS TO REFERENCES. is presented must grant an order for the examination, if an action is pending; if no action is pending he must grant it if there be reasonable ground to believe that an action will be brought, as stated in the affidavit, and that the applica- tion is made in good faith to preserve the expected testi- mony; otherwise he must dismiss the application. The order must require the party or persons to be exammed to appear before the judge, or before a referee named in the order, for the purpose of taking the examination at a time " 6. If no action is pending, that the production of such books and the person expected to be the ad- papers." verse party is of full age and a Rule 82 provides: " When an ex- resident of the state, or sojourning amination is required under sec- within the state; or that he has an tions 870, 871, 872 of the Code of office within the state, where he Civil Procedure, the affidavit shall regularly transacts business in per- specify the facts and circumstances son, specifying the place, and, if it which show, in conformity with is in a city, the street and street subdivision 4 of section 872, that number or other designation of the the examination of the person is particular locality; or, if two or material and necessary." more persons are expected to be The affidavit may be made by the adverse parties, that each is of full party, his attorney or a third per- age and so resident or sojourning or son. (Corbett v. De Comeau, 54 has an office; also the circum- How. 506; 4 Abb. N. C. 252.) If stances which render it necessary by an attorney or third party it for the protection of the applicant's must be on knowledge (Hanson v. rights, that the witness' testimony Marcus, 8 App. Div. 318; Railway should be perpetuated. Age v. Pryibil, 18 Misc. 561), or, " 7. Any other fact necessary to if made upon information, the show that the case comes within sources thereof must be given, one of the two last sections. And (Hall v. Rogers, 22 Hun, 19; Lane if the party sought to be ex- v. Williams, 20 Week. Dig. 16; amined is a corporation, the affida- Simmons v. Hazard, 65 Hun, 612; vit shall state the name of the 48 St. Repr. 240; 20 N. Y. Supp. officers or directors thereof, or any 508; 23 Civ. Proc. Rep. 15.) If of them whose testimony is neces- made by an attorney sufficient rea- sary and material, or the books and son therefor must be given, but it papers as to the contents of which is not sufficient reason that plain- an examination or inspection is tifif is not within the county. (Sim- desired, and the order to be made mons v. Hazard, 58 Hun, 119; 33 in respect thereto shall direct the St. Repr. 838; II N. Y. Supp. 511.) examination of such persons and EEFERENCE TO EXAMINE PARTY, ETC., BEFORE TRIAL. 1 59 and place therein specified. The order must also direct the time of service of a copy thereof; which must be made within the state, not more than twenty, nor less than five days, before the time fixed for the examination, unless special circumstances, making a different time of service necessary, are shown in the affidavit, and that fact recited in the order. ^° The referee must take the examination of the party or witness at the time and place specified in the order; and may, from time to time, adjourn the examination to another day, and to another place, within the same county.*' A party or person confined in a prison or jail may be ex- amined.*^ The examination of a party, or an expected party, is subject to the same rules as if he were examined upon the trial.*^ Questions that are competent upon the trial are compe- tent upon these examinations.*'* Unless objection to the form of a question is taken when the deposition is made, it will be deemed to have been waived.*^ A party appearing for examination cannot object to being sworn, but must wait until a question is asked under which a personal privilege may be claimed.** A party may be required to produce books and papers upon such an examination,*'' but this does 60. Code of Civ. Proc, § 873. that might tend to criminate the This section also provides for a witness must be taken and passed physical examination of a plaintiff, upon at the examination. (Batter- in an action for personal injuries. son v. Sanford, 45 N. Y. Super. 61. Code of Civ. Proc, § 876. 127; Corbett v. De Comeau, 5 Abb. 62. Code of Civ. Proc, § 877- N. C. 169; 44 N. Y. Super. 306.) 63. Code of Civ. Proc, § 880. 67. McGufKn v. Dinsmore, 4 Abb. 64. Dambmann v. Butterfield, 2 N. C. 241 ; Drake v. Weinman & Hun, 284; 4 T. & C. 542. Co., 12 Misc 65; 33 N. Y. Supp. 65. Hebbard v. Haughian, 70 N. 177; Press Pub. Co. v. Morning Y. 54. Journal Assn., 33 App. Div. 242; 53 66. Corbett v. De Comeau, S4 N. Y. Supp. 371; Davies v. Lincoln How. 506; 4 Abb. N. C. 252. Nat. Bank, 19 St. Repr. 905; 4 N. An objection to giving evidence Y. Supp. 373. l6o LAW AND PRACTICE AS TO REFERENCES. not permit a discovery of their contents or inspection by the adverse party ;*8 they can only be used by the witness in aid of his memory concerning the facts as to which his examina- tion is desired;*' but where a party under examination be- fore trial voluntarily refers to the contents of his books he may be compelled to produce them or state their contents ;7'> and where a party swears that he cannot answer fully with- out reference to books and papers he may then be com- pelled to produce them.'' When a witness has been re- quired by an order to produce books and papers, a failure to do so may be punished for contempt.'^ Upon the examination the referee must inser: every answer or declaration of the person examined, which either party requires to be inserted, and if the person examined refuses to answer any question the referee must report the fact to the court or judge, who must determine whether the question is relevant and whether the witness is bound to answer it.'^ 'p^g referee need not himself write down the examination of the witness; it is sufficient that he administer the proper oath, and then, after the witness has been examined in his presence, and answers written down, that 68. McGuffin V. Dinsmore, 4 Abb. v. Reagan, 46 App. Div. 590; 62 N. C. 241; Duffy V. Consolidated N. Y. Supp. 39; Drake v. Weinman Gas Co., 59 App. Div. 580; 69 N. Y. & Co., 12 Misc. 65; 33 N. Y. Supp. Supp. 63s; Bloom V. Pond's Ex- 177. tract Co., 18 N. Y. Supp. 179. 70. Morrison v. McDonald, 9 69. Bloom V. Pond's Extract Co., Abb. N. C. 57, n. 18 N. Y. Supp. 179; Fenlon v. 71. Ahlmeyer v. Healy, 12 St. Dempsey, 10 St. Repr. 733; 50 Hun, Repr. 677; 14 Daly, 288; Dyett v. 131; 19 St. Repr. 231; 2 N. Y. Supp. Seymour, 19 St. Repr. 714; 2 N. Y. 763; 15 Civ. Proc. Rep. 393; Talbot Supp. 481. V. Doran & Wright Co., 16 Daly, 72. Press Pub. Co. v. Associated 174; 18 Civ. Proc. Rep. 304; 30 St. Press, 27 Misc. 90; 58 N. Y. Supp. Repr. 558; 9 N. Y. Supp. 478; Duffy 186. V. Consolidated Gas Co., 59 App. 73. Code of Civ. Proc, § 880. Div. 580; 69 N. Y. Supp. 63s; Ryan REFERENCES TO TAKE PROOF; JUDGMENT BY DEFAULT. l6l the referee read it over to the witness before signing and certifying.'"* The deposition must be carefully read to and subscribed by the person examined. The referee must certify to it and file the same, together with the affidavit, order for examina- tion, and proofs of service, in the ofiiice of the clerk; or, if no action is pending, in the office of the clerk of the county where the examination was taken. ^''^ § 83. References to take proof on application for judgment by default — The court, or a judge or justice thereof, may direct a reference upon an application for judgment by de- fault.''5 The order may direct that the report of the referee be returned to the court for further action, or, except where special provision is otherwise made by law, such direction may be omitted.'^ A reference cannot be directed in actions for torts.''' The hearing must be had in the county named in the complaint as the place of trial.''^ A defendant in de- fault may be permitted to prove facts whic hmay tend to mitigate damages,^' but he cannot prove a partial defense.^" 74. McDonald v. Garrison, 9 76. Code of Civ. Proc, § 1215. Abb. 34; 18 How. 249; Foster v. 77. Thompson v. Finn, 11 Week. Bullock, 12 Hun, 200. Dig. 182; 11 Reporter, 104; Rick- 74a. Code of Civ. Proc, § 880. ards v. Swetzer, 3 How. 413; I Code The ordinary jurat is not sufficient Rep. 117; Dutch Reformed Church to comply with this section. The of Canajoharie v. Wood, 8 Barb. referee's certificate must state that 421 ; Stanley v. Anderson, i Code the deposition was carefully read Rep. 52; Saltus v. Kip, 2 Abb. 382; over to the witness and subscribed 12 N. Y. Super. 646; 12 How. 343. by him in the presence of the ref- 78. Brush v. Mullany, 12 Abb. eree (Foster v. Bullock, 12 Hun, 344. 200), although it is not essential 79. Saltus v. Kip, 2 Abb. 382; 12 that the word "carefully" should How. 342; 12 N. Y. Super. 646; be used, as the court will presume Lane v. Gilbert, 9 How. 150; Gil- that the law was complied with, bert v. Rounds, 14 How. 46. (Sheldon v. Wood, 15 N. Y. Super. 80. Ford v. David, 14 N. Y. 267.) Super. 569, 598. 75. Code of Civ. Proc, § 1215. II 1 62 LAW AND PRACTICE AS TO REFERENCES. The absence of defendant is no ground for postponement, unless he is needed as a witness.^' The hearing is to be brought on and conducted as other interlocutory refer- ences and a report must be filed and constitute a part of the judgment-roll.*^ § 84. References to ascertain damages sustained by an in- junction — The damages sustained by reason of an injunc- tion may be ascertained and determined by the court, or by a refree appointed by the court, or by a writ of inquiry, or otherwise, as the court shall direct; and the decision of the court thereupon, or an order confirming the report of the referee, is conclusive, as to the amount of those damages, upon all the persons who have executed the undertaking, unless it is reversed upon appeal. The court may, in its discretion, direct that the sureties have notice of the hear- ing, or of an appeal, and may prescribe the time and manner of giving them notice.*^ A motion for a reference to ascertain damages sustained by reason of an injunction must be made in the judicial dis- trict within which the action is triable.*'* It is not the order vacating a temporary injunction, but the final outcome of the action that determines the right to the order of refer- ence. *' Discontinuance of the action is equivalent to a deter- mination that plaintiff was not entitled to the injunction;** 81. Samuels v. Bryant, 14 Abb. wood, 76 N. Y. 194; Palmer v. (N. S.) 442. Foley, 71 N. Y. 106; New York 82. Code of Civ. Proc, § 1237. Security & Trust Co. v. Lipman, 83. Code of Civ. Proc, § 623. 83 Hun, 569; 65 St. Repr. 228; 32 84. Code of Civil Proc, § 769; N. Y. Supp. 65; Cassell v. Fisk, 16 Wilson v. Dreyer, 65 App. Div. 249; Week. Dig. 112. 72 N. Y. Supp. 578. 86. Manning v. Cassidy, 80 Hun, 85. Methodist Church v. Barker, 127; 61 St. Repr. 788; 30 N. Y. 18 N. Y. 463; Musgrave v. Sher- Supp. 23; New York City Suburban REFERENCES TO ASCERTAIN DAMAGES BY INJUNCTION. 163 also where complaint is dismissed ;*'' but where an ap- peal is taken from a judgment, an order of reference can- not be made until the final decision.^^ The referee may allow upon the hearing, as damages, counsel fees on the motion to dissolve the injunction; but such fees are not allowable where the motion was unsuccessful ;9'' nor are counsel fees at the trial of the action, unless the expense of the trial was caused or increased by the injunction.'' Coun- sel fees on the reference, however, are proper ;''^ also referee's fees, costs of motion for appointment of referee, and notice Water Co. v. Bissell, 78 Hun, 176; 90. Langdon v. Gray, 22 Hun, 60 St. Repr. 244; 28 N. Y. Supp. 511; Allen v. Brown, 5 Lans. 511; 938; N. Y. C. & H. R. R. R. Co. Childs v. Lyons, 26 N. Y. Super. V. Village of Hastings, 9 App. Div. 704; Lyon v. Hersey, 32 Hun, 253; 256; 41 N. Y. Supp. 492; Benedict 100 N. Y. 641; 2 Week. Dig. 463. V. Benedict, 76 N. Y. 600; affg. 15 91- Disbrow v. Garcia, 52 N. Y. Hun, 355; Nugent V. Swan, 61 How. 654; Hovey v. Rubber Tip Pencil 40. Co., 50 N. Y. 335 ; affg. 38 N. Y. 87. De Berard v. Phial, 34 App. Super. 428; 47 How. 289; Hotch- Div. 502; 54 N. Y. Supp. 534. kiss v. Piatt, 8 Hun, 46; Taaks v. 88. Ninth Ave. R. R. Co. v. New Schmidt, 18 Abb. 307; Strong v. De York El. R. R. Co., 3 Abb. N. C. Forest, 15 Abb. 427; Allen v. 22; Musgrave v. Sherwood, 76 N. Brown, 5 Lans. 511; Newton v. Y. 194; Howard v. Park, 59 How. Russell, 87 N. Y. 527; Rose v. Post, 344. 56 N. Y. 603. 89. Rose V. Post, 56 N. Y. 603; Counsel fees for services other Disbrow v. Garcia, 52 N. Y. 654; than those made necessary by a Coates V. Coates, 8 N. Y. Super, temporary injunction cannot be as- 664; Fitzpatrick v. Flagg, 12 Abb. sessed as damages upon the under- 189; Wilde V. Joel, 15 How. 320; taking given on granting the in- 13 N. Y. Super. 671; Baylis v. junction. So also, fees of counsel Scudder, 6 Hun, 300; afifd., 67 N. Y. in unsuccessfully resisting the al- 600; Boswell V. Ward, 17 Week, lowance of the injunction. (Ran- Dig. 390; Ten Eyck v. Sayer, 76 dall v. Carpenter, 88 N. Y. 293; Hun, 37; 59 St. Repr. 627; 27 N. Y. affg. 24 Hun, 662.) Supp. 588; Lond. & Braz. Bank v. 92. Rose v. Post, 56 N. Y. 603; Walker, 57 St. Repr. 195; 74 Hun, O'Connor v. New York & Yonk. 395; 26 N. Y. Supp. 844; Crounse L. Imp. Co., 8 Misc. 243; 59 St. V. Syracuse, C. & N. Y. R. R. Co., Repr. 218; 28 N. Y. Supp. 544. 32 Hun, 497. 164 LAW AND PRACTICE AS TO REFERENCES. to surety may be recovered.'^ Damages sustained by reason of the injunction only are allowable.'^a The fact of damage and the amount must be established by satisfactory proof ;»* but the referee is not confined to the strict rules of evidence which govern the trials of issues.^s It is not necessary, in proceedings of this kind, that the referee shall make a report of his findings of fact or con- clusions of law, although that course in respect to findings of fact may often be advisable or desirable to aid the court in ascertaining the facts of the case. It is enough to com- ply with established rules of practice, for the referee to reach a conclusion as to the damages sustained by reason of the injunction, and report the same with the items of allowance that have been made by him, together with the testimony taken on the hearing.'^ The report of the referee must be confirmed by the court before any action can be maintained upon it.'' 93. Allen v. Brown, 5 Lans. 511. Repr. 429); cost of special train Where an injunction prevented ($200) to take counsel to place of the completion of a building, loss session of court, for the purpose of rent, increased cost of labor and of getting injunction vacated, materials, counsel fees on motion (Crounse v. S., C. & N. Y. R. R. to dissolve the injunction and on Co., 32 Hun, 497.) appeal from the order were held 93a. Harrison v. Harrison, 75 proper. (Roberts v. White, 73 N. Hun, 191; 58 St. Repr. 166; 26 N. Y. Y. 375; afifg. 43 N. Y. Super. 455.) Supp. 965. The following have been held 94. Dwight v. North Ind. R. R. proper items of damages: Value Co., 54 Barb. 271. of property taken in an action to 95. Roberts v. White, 73 N. Y. establish title to chattels (Barton 375; aflfg. 43 N. Y. Super. 455. V. Fisk, 30 N. Y. 166); value of 96. Matthews v. Murchison, 14 crops which defendant was pre- Abb. N. C. 512, n. vented from harvesting (Allen v. 97. Griffing v. State, S How. 205; Brown, 5 Lans. 511); rent where 3 Code Rep. 213. summary proceedings were enjoined The court may, in its discretion, (Bray v. Poillon, 4 T. & C. 663; 2 hear the sureties on the application Hun, 383) ; expense of serving to confirm the report. (Methodist papers (Preuschl v. Wendt, 5 St. Churches v. Barker, 18 N. Y. 463.) TITLE III. REFERENCES IN PARTICULAR ACTIONS. Chapter I. References in Actions to Foreclose Mortgages on Real Estate (§§ 85-96). II. References in Partition (§§ 97-99). III. References in Actions for Dower (§§ 100-106). IV. References in Matrimonial Actions (§§ 107-113). V. References of Claims Against Estates of Decedents. (§§ 114-116). CHAPTER I. REFERENCES IN ACTIONS TO FORECLOSE MORTGAGES ON REAL ESTATE. L References of Issues or Parts of Issues, Including Interlocutofy Matters. Section 83. Reference of the issues, etc. II. References to Compute Amount Due and to Take Proof of Alle- gations of Complaint. Section 86. When ordered; statute and rules. 87. The hearing and the report. 88. Confirmation of the report and judgment thereon. III. References to 5ell. Section 89. General powers and duties of the referee. 90. Advertising and conducting the sale. 91. Referee's report of sale and confirmation. 92. Referee's fees on sale. IV. References as to Surplus Moneys. Section 93. Provisions of the statute and rules. 94. The hearing, and what may be shown thereon. 95. The report. 96. Referee's fees and costs. [. References of Issues or Parts of Issues, Including Interlocutory natters. § 85. Reference of the issues, etc — A reference to hear and determine all the issues in an action brought for the fore- (165) 1 66 LAW AND PRACTICE AS TO REFERENCES. closure of a mortgage upon real estate may be made by con- sent of the parties thereto;' and a compulsory reference of the issues may also be made in a case involving a long ac- count and not requiring the decision of difficult questions of law.- The practice generally in references of actions of foreclosure is the same as in other actions. References of interlocutory matters arising at any stage of the action may also be made in foreclosure actions.^ II. References to Compute Amount Due, and to Take Proof of Alle- gations of Complaint. § 86. When ordered ; statute and rules The Code of Civil Procedure makes provision for references to compute the amount due and to take proofs as to the allegations in a complaint in an action for the foreclosure of a mortgage.'* Further provision is made by the' General Rules of Practice as follows: " If, in an action to foreclose a mortgage, the defendant fails to answer within the time allowed for that purpose, or the right of the plaintiff, as stated in the complaint, is ad- mitted by the answer, the plaintiff may have an order re- ferring it to some suitable person as referee, to compute the amount due to the plaintifif, and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to 1. Code of Civ. Proc, § lOil. thereon, nor obtain any affirmative 2. Code of Civ. Proc., § 1013. judgment thereon. (City Real Es- See Barnes v. West, 16 Hun, 68. tate Co. v. Foster, 44 App. Div. 114; In an action to foreclose a mort- 60 N. Y. Supp. 577.) gage, where defendant set up a 3. Code of Civ. Proc, § 1015. counterclaim consisting of a cause See Centra! Trust Co. v. N. Y. C. of action against the plaintiflf's as- & N. R. R. Co., 42 Hun, 602; 18 signor, a compulsory reference of Abb. N. C. 381; 4 St. Repr. 639; the issues arising on the counter- aflfg. 18 Abb. N. C. 64. claim and reply cannot be ordered, 4. Code of Civ. Proc, §§ lois, as the defendant could not main- 1213. tain an action against the plaintiff REFERENCES TO COMPUTE AMOUNT DUE, ETC. '167 examine and report whether the mortgaged premises can be sold in parcels, if the whole amount secured by the mort- gage has not become due. If the defendant is an infant, and has put in a general answer by his guardian, or if any of the defendants are absentees, the order of reference shall also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint, and to ex- amine the plaintif? or his agent, on oath, as to any payments which have been made, and to compute the amount due on the mortgage, preparatory to the application for judgment of foreclosure and sale. Where no answer is put in by the defendant, within the time allowed for that purpose, or any answer denying any material facts of the complaint, the plaintiff, after the cause is in readiness for trial, as to all the defendants, may apply for judgment, at any Special Term, upon due notice to'such of the defendants as have appeared in the action, and with- out putting the cause on the calendar. The plaintiff, in such case, when he moves for judgment, must show, by affidavit or otherwise, whether any of the defendants who have not appeared are absentees; and, if so, he must produce the report as to the proof of facts and cir- cumstances stated in the complaint, and of the examination of the plaintiff or his agent, on oath, as to any payments which have been made. And in all foreclosure cases the plaintiff, when he moves for judgment, must show by affi- davit, or by the certificate of the clerk of the county in which the mortgaged premises are situated, that a notice of the pendency of the action, containing the names of the parties thereto, the object of the action, and a description of the property in the county affected thereby, the date of the mortgage, and the parties thereto, and the time and place of 1 68 LAW AND PRACTICE AS TO REFERENCES. recording the same, has been filed at least twenty days before such application for judgment, and at or after the time of filing the complaint, as required by law.' No order of reference can be made until all the defendants have been served with the summons and complaint or sum- mons and notice of object of action, and have not appeared,^ and if a defendant has interposed an answer raising a ma- terial issue, but fails to appear on the trial, the plaintiff can- not have a reference to compute the amount due.^ It is irregular to combine in one reference the inquiry as to the amount due (as against a nonanswering defendant) with the trial of issues between the plaintiff and other defendants, and to enter judgment upon the report without application to the court, for judgment against the nonanswering defendant.* The application for the order of reference should be made upon the summons and complaint and all other papers in the action with proof of service; the appearance of any defend- 5. Supreme Court Rule 60. 345-) Where a defendant who has A defendant appearing in an action appeared, but has not answered, re- for foreclosure after the entry of ceives notice of a motion for judg- judgment is entitled to notice of ment, but does not appear therein, all subsequent proceedings. (Mar- and a referee is thereupon ap- tine V. Lowenstein, 6 Hun, 225.) pointed, the defendant is not en- And when defendant appears, but titled to notice of the hearing fails to answer, and the plaintiff before the referee, as computation gives due notice of an application of the amount due is but an inci- te the court for the relief demanded dent to the application for judg- in the complaint, or judgment, the ment. (Eyring v. Hercules Land court may, instead of itself com- Co., g App. Div. 306; 75 St. Repr. puting the amount due, refer it to 639; 41 N. Y. Supp. 191.) the clerk, or to some other suitable 6. Goodyear v. Brooks, 27 N. Y. person, to make such computation. Super. 682; 2 Abb. (N. S.) 296. Such reference is not such a new '''• Exchange Fire Ins. Co. v. or independent proceeding as to re- Early, 4 Abb. N. C. 78. quire new notice to the defendant. 8. Cram v. Bradford, 4 Abb. 193. Nor need it be executed in the See Hill v. McReynolds, 30 Barb. county in which the action is tri- 488. able. (Kelly v. Searing, 4 Abb. REFERENCES TO COMPUTE AMOUNT DUE, ETC. 169, ant; and the affidavit to obteiin a reference to compute the amount due should state that no answer has been received, whether the moneys secured have all become due and pay- able and whether any defendants are absentees or infants.' The moving papers should be served upon each party who has appeared, at least eight days before the day of the motion. 5^ No judgment can be entered against a nonresi- dent defendant who does not appear and who has not been personally served with a summons, except upon the report of a referee as to the truth of the matters alleged in the complaint. '"- The referee to be appointed in foreclosure cases to compute the amount due, or to sell mortgaged premises, shall be selected by the court, and the court shall not appoint as such referee a person nominated by the party to the action or his counsel." " Except in cases provided for by section loii of the Code of Civil Procedure, no person, unless he is an attorney of the court in good standing, shall be appointed sole referee for any purpose in any pending action or proceeding. Nor shall any person be appointed a referee who is the partner or clerk of the attorney, or counsel, of the party in whose behalf such application for such appointment is made, or who is in any way connected in business with such attorney or coun- 9. Code of Civ. Proc, § 1216; eery Rule 100.) The summons must Supreme Court Rule 60; Anony- be signed by the referee. (Knapp mous, 3 How. 158. V. Burnham, 11 Paige, 330; Cham- A strict practice requires that berlain v. Dempsey, 36 N. Y. 144.) the referee should issue a summons If there are no appearances, no for service upon each defendant notice is necessary, who has appeared at least five days 9a. Code of Civ. Proc, § laig. before the hearing (§ 1219, subd. i), 10. Corning v. Baxter, 6 Paige,, with an underwriting stating briefly 178. the object of the reference. (Chan- 11- Supreme Court Rule 61. 170 LAW AND PRACTICE AS TO REFERENCES. sel, or who occupies the same office with such attorney or counsel."^ § 87. The hearing and the report. — The reference to com- pute the amount due in foreclosure cases being an interlocu- tory reference is brought to a hearing in the same manner as other interlocutory references." The referee to compute the amount due need not be sworn if the reference is merely to compute the amount due;'^ but where an answer has been interposed and the defendant does not appear, the referee's oath is necessary.''* The safer rule is for the referee to take the oath especially where there are infants or absentees. The referee should take no steps until the order appointing him has been actually entered and a certified copy delivered to him.'s Upon the day appointed for the hearing the referee should proceed to take the testimony. The plaintiff should be re- quired to produce strict legal proof. '^ The referee can- not accept an affidavit as proof of the amount due.'^ The execution of the bond and mortgage should be proved by the subscribing witness or the certificates of acknowledg- ment.'^ If the plaintiff is a corporation its officers should be examined in a proper case, as to the payments which ought to be credited on the mortgage ;'' and in case of infants or absentees, the plaintiff must prove his debt before the referee in the same manner as if nothing had been admitted in the lla. Supreme Court Rule 79. 16. Wolcott v. Weaver, 3 How. 12. See ante, § 72. 159. 13. McGowan v. Newman, 54 17. Security Fire Ins. Co. v. How. 458; 4 Abb. N. C. 80. Martin, 15 Abb. 479. 14. Exchange Fire Ins. Co. v. 18. Wolcott v. Weaver, 3 How. "Early, 54 How. 279; 4 Abb. N. C. 159. 78. 19- Ontario Bank v. Strong, 2 15. Bonner v. McPhail, 31 Barb. Paige, 301. 106; Gerity v. Seeger & Guernsey Co., 163 N. Y. 119. THE HEARING AND THE REPORT. 171 answer/" Where portions of the mortgaged premises have been sold the referee should take proof of the equities of such owners, in order that such portions may be sold in the inverse order of alienation.^' In case taxes have been paid by the plaintiff in order to protect his security, although there is no clause in the mortgage authorizing him to do so, the claim can be enforced as a part of the mortgage debt,^^ and the referee should include the amount of such taxes, liens, or assessments, with interest, and add to the mortgage debt.''^ And if the mortgage contains a clause requiring the mort- gagor to keep the premises insured, the mortgagee may do so upon his failure, and any sums paid for such purpose may be included by the referee in the amount due.^* In a refer- ence to compute the amount due to the plaintiff and to prior incumbrancers, the referee has no power to determine the question of priority.^'* In references of this kind it is not 20. Mills V. Dennis, 3 Johns. Ch. sists of distinct parcels of land, 367. whose relative value is entirely in- 21. Bard v. Steele, 3 How. no. dependent of each other. In such Under orders of reference in cases he will so report, and the land foreclosure cases, the first duty of must be sold accordingly. (Gregory the referee, aside from computing v. Campbell, 16 How. 417.) If he the amount due on the mortgage, is reports upon the advisability of to ascertain whether the mortgaged sale by parcels, he should state the premises are so situated that they reasons for such conclusions, can be sold in parcels, without in- (Everett v. Hoflfman, i Paige, 648; jury to the interests of the parties. Ontario Bank v. Strong, 2 Paige, If he finds that the property cannot 301.) be sold in parcels, as he would be 22. Williams v. Townshend, 31 bound to do, in cases where it is N. Y. 414; Sidenberg v. Ely, 90 N. indivisible for use or enjoyment, as Y. 257; Silver Lake Bank v. North, in the case of a mill, a store, a 4 Johns. Ch. 370. dwelling-house, or a farm, or single 23. Faure v. Wynans, I Hopk. piece of property whose value con- Ch. 283; Burr v. Veeder, 3 Wend, sists in keeping it together in its 412; Robinson v. Ryan, 25 N. Y. unity or entirety, such finding will 320. practically end his duties under the 24. Harris v. Fly, 7 Paige, 421. order. And so it v/ill if he finds See also Chamberlain v. Dempsey, that the mortgaged premises con- 36 N. Y. 144; i Trans. App. 257. 172 LAW AND PRACTICE AS TO REFERENCES. necessary that the witnesses should subscribe their testi- mony.^5 The referee's report should conform to the order appointing him; he is not required to state the facts upon which his conclusion is based, but merely states his con- clusions and the amount found due;^* he is not required to return the testimony taken by him, but should annex to his report an abstract of the documentary evidence produced before him.^' The report is not conclusive in the matter of computation and the court may send it back for further findings. ^^ The report must be confirmed by the court at Special Term,^' and when so confirmed it becomes the act of the court. 3° § 88. Confirmation of the report and judgment thereon In case there is no appearance upon the part of a defendant it is the usual practice to produce the referee's report before the court, ex parte. But if there are appearances, such ap- plication must be preceded by the usual notice of eight days. The motion must be for an order confirming the report of the referee and granting final judgment of foreclosure and sale as demanded in the complaint, and for such other relief as may be proper. Exception may be filed by any defend- ant who may be dissatisfied.^' Upon a motion to confirm a referee's report, as against exceptions filed to it, affidavits to sustain the report cannot be allowed. ^^ If the report is confirmed, either upon ex parte application or upon notice, the plaintiff is entitled to final judgment of 25. Supreme Court Rule 30. 415; Empire Assn. v. Stevens, 8 26. Sidenberg v. Ely, 90 N. Y. Hun, 515. 257. 30. McGowan v. Newman, 4 Abb. 27. Security Fire Ins. Co. v. N. C.'8o. Martin, 15 Abb. 479. 31- Supreme Court Rule 30. 28. Austin v. Ahearne, 61 N. Y. 6. 32. Koch v. Purcell, 45 N. Y. 29. Swarthout v. Curtis, 4 N. Y. Super. 162, 171. CONFIRMATION OF REPORT AND JUDGMENT. 1 73 foreclosure and sale." The judgment should describe the property, and direct the time, place, and manner of sale — either by the sheriff of the county or by a referee — and give directions as to the disposition of the proceeds.^* It should also direct judgment for any deficiency.^s In every judgment for the sale of mortgaged premises, the description and particular boundaries of the property to be sold, so far, at least, as the same can be ascertained from the mortgage, shall be inserted. And, unless otherwise specially ordered by the court, the judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale, and the costs of the action, as provided by sections 1626 and 1676 of the Code, and which may be sold separately without material injury to the parties interested, be sold by or under the direction of the sheriff of the county, or a referee, and that the plaintiff, or any other party, may become a purchaser on such sale; that the sheriff or referee execute a deed to the purchaser; that out of the proceeds of the sale, unless otherwise directed, he pay the expenses of the sale, as provided in section 1676 aforesaid, and that he pay to the plaintiff, or his attorney, the amount of his debt, interest and costs, or so much as the purchase money will pay the same, and that he take the receipt of the plaintiff, or his attorney, for the amount so paid, and file the same with his report of sale, and that the purchaser at such sale be let into possession of the premises on production of the deed. 33. Code of Civ. Proc, § 1626, the sale, and the costs of the as follows: "In an action to fore- action." close a mortgage, if the plaintiff 34. Supreme Court Rule 6i; becomes entitled to final judgment, Code of Civ. Proc, § 1242. it must direct the sale of the prop- 35. Code of Civ. Proc, § 1627, erty mortgaged, or of such part subd. I ; McCarthy v. Graham, 8 thereof as is sufficient to discharge Paige, 480; Frank v. Davis, 135 N. the mortgage debt, the expenses of Y. 275. 174 LAW AND PRACTICE AS TO REFERENCES. All surplus moneys arising from the sale of mortgaged premises, under any judgment, shall be paid by the sheriff or referee making the sale within five days after the same shall be received and be ascertainable, in the city of New York to the chamberlain of said city, and in other counties to the treasurer thereof, unless otherwise specially directed, subject to the further order of the court, and every judgment in foreclosure shall contain such directions, except where other provisions are specially made by the court. No report of sale shall be filed or confirmed unless accompanied with a proper voucher for the surplus moneys, and showing that they have been paid over, deposited, or disposed of in pur- suance of the judgment. The referee to be appointed in foreclosure cases to compute the amount due, or to sell mort- gaged premises, shall be selected by the court, and the court shall not appoint as such referee a person nominated by the party to the action or his counsel.^^ III. References to Sell. § 89. General powers and duties of the referee The ref- eree appointed by the court to make the sale under the judgment in a foreclosure action is usually the same person as the referee appointed to compute the amount due, although convenience may require the appointment of another. He must be selected by the court,^'' and he may be required to give security;^* but such requirement is not usual in practice. The duties of a referee appointed to make a sale are purely ministerial, and he cannot disregard or vary the terms of the judgment directing the sale.^' If he does 36. Supreme Court Rule 61. 39. People ex rel. Day v. Bergen, 37. Supreme Court Rules 61, 79. 53 N. Y. 404; 15 Abb. (N. S.) 97; 38. Code of Civ. Proc, § 1243. Heller v. Cohen, 154 N. Y. 308; 48 N. E. Repr. 527. REFERENCES TO SELL; POWER AND DUTY OF REFEREE. I/S SO, he acts at his peril and in his own wrong ;'*° but he may apply to the court for directions.""* If he neglect to proceed with the sale, the court will give further directions upon the application of any party to the action;*' and if he improperly exercises a discretion to the injury of a party, the court will relieve."^ The sale must be in parcels where the mortgage covers several lots;'*^ and where a request to sell in parcels is improperly denied, the court will order a resale.'*'* When the property covered by the mortgage has been conveyed in several different parcels, the court may direct the order of sale ;''5 and unless so' directed by the court, the order of sale is in the discretion of the referee, where the parcels adjoin and are owned by the same person.'** When 40. People ex rel. Day v. Bergen, 53. N. Y. 404; IS Abb. (N. S.) 97. 40a. Easton v. Pickersgill, 55 N. Y. 310. 41. Kelley v. Israel, 11 Paige Ch. 147. 42. Breese v. Busby, 13 How. 485- 43. Code of Civ. Proc, § 1678; O'Donnell v. Lindsay, 39 N. Y. Super. 523; Tugwell v. Bussing, 48 How. 89; Wolcott V. Schenck, 23 How. 385; Griffiths v. Hadley, 23 N. Y. Super. 588. 44. Wolcott V. Schenck, 23 How. 38s; Vandercook V. Cohoes Savings Inst, S Hun, 641. Even after a decree of sale, a ref- erence may be ordered, to ascer- tain the equities of defendants and to report the order in which the sale should be made, and after the report, sale should be made accord- ingly. (Bard v. Steele, 3 How. no. See Rathbone v. Clark, 9 Paige, 648; Snyder v. Stafford, 11 Paige, 71.) Such reference should be brought to a hearing on the usual notice to all defendants who have appeared, and the referee's deci- sion thereon can be reviewed by the court on motion. (New York Life Ins. & Trust Co. v. Milnor, i Barb. Ch. 353.) In Vandercook v. The Cohoea Savings Institution, the court held that a party to an action brought to foreclose a mortgage, who de- sires to have the mortgaged prem- ises sold in a particular order, should have a clause to that effect inserted in the decree; or, after the entry thereof, he should move for an order directing the referee as to the order in which the premise'* are to be sold; or he may, after the sale, move to set the same aside, in case the referee shall have dis- regarded any proper request made to him at the time thereof. 45. State Bank v. Hibbard, 45 How. 280; Van Slyck v. Van Loan, 26 Hun, 344. 46. Whitbeck v. Rowe, 25 How, 403- 176 LAW AND PRACTICE AS TO REFERENCES. the premises have been conveyed to different purchasers after the giving of the mortgage, the parcels should be sold in the inverse order of their alienation.^' A referee is not authorized to sell premises under a second mortgage free and clear from incumbrances unless the de- cree so directs,"** nor can he, without authority from the court, correct an erroneous description of the premises sold by him.« § 90. Advertising and conducting the sale. — Where a de- cree of sale is placed in the hands of the referee appointed to make the sale it is his duty to proceed to the sale of the 47. Ex parte Merrian, 4 Den. 254; Howard Ins. Co. v. Halsey, 4 Sandf. Ch. 565; 8 N. Y. 271; La Farge Ins. Co. v. Bell, 22 Barb. 54; Crafts V. Aspinwall, 2 N. Y. 289; Ingalls V. Morgan, 10 N. Y. 178; Belmont v. Coman, 22 N. Y. 438; Zabriskie v. Salter, 80 N. Y. 555; Hopkins v. Wolley, 81 N. Y. "JT, Kendall v. Niebuhr, 58 How. 156, 163; 45 N. Y. Super. 542, 551; Coles V. Appleby, 22 Hun, 72; 87 N. Y. 114, 121; Bernhardt v. Lymburner, 85 N. Y. 172; Clowes V. Dickenson, 5 Johns. Ch. 235; Barnes v. Mott, 64 N. Y. 402; Green v. Milbank, 3 Abb. N. C. 155; Guion v. Knapp, 6 Paige, 35; Juniel v. Jumel, 7 Paige, 591; Skeel v. Spraker, 8 Paige, 182; Stuyvesant v. Hall, 2 Barb. Ch. 151; Chapman v. West, 17 N. Y. 127; Ferguson v. Kim- ball, 3 Barb. Ch. 616; Schryver v. Teller, 9 Paige, 173; Steere v. Childs, IS Hun, 518; Jenkins v. Freyer, 4 Paige, 53; Thomas v. Moravia F. & M. Co., 43 Hun, 491; Kellogg V. Rand, 11 Paige, 59; St. John V. Bumstead, Vj Barb. 102; IngaHs V. Morgan, 10 N. Y. 178; Belmont v. Coman, 22 N. Y. 438; Rathbone v. Clark, 9 Paige, 648; Bowne v. Lynde, 91 N. Y. 92; Welling V. Ryerson, 94 N. Y. 98; Denton v. Ontario Co. Nat. Bank, TJ Hun, 83; Libby v. Tufts, 121 N. Y. 172; 30 St. Repr. 495; afifg. 16 St. Repr. looi. A second or other grantee takes subject to the equity of the prior grantee. (Bernhardt v. Lymburner, 85 N. Y. 17s; Thomas v. Moravia F. & M. Co., 43 Hun, 491.) But this doctrine of liability in inverse order of alienation and all of its consequences are defeated when a grantee either expressly assumes payment of the mortgage, or where he takes the parcel subject to the mortgage as a part of the con- sideration. (Torrey v. Bank of Orleans, 9 Paige, 649.) 48. Guggenheimer v. Sayre, 21 St. Repr. 255; Day v. Johnson, 5 Week. Dig. 237. 49. Heller v. Cohen, 15 Misc. (36 N. Y. Supp.) 668. ADVERTISING AND CONDUCTING THE SALE. I77 property with all reasonable diligencCjS" and should adver- tise the property by a notice of sale. Notice of such sale must be given by the ofificer making it, as prescribed in sec- tion 1434 of this act for the sale by a sherif? of real property, by virtue of an execution,^' unless the property is situated wholly or partly in a city in which a daily, semi-weekly, or tri-weekly newspaper is published, and, in that case, by pub- lishing notice of the sale in such daily, semi-weekly, or tri- weekly paper, at least twice in each week for three successive weeks, or in a weekly paper published in a city, once in each of the six weeks, immediately preceding the sale, or in the counties of New York and Kings in two such daily papers. If the officer appointed to make such sale does not appear at the time and place where such sale has been advertised to take place, then in that case the attorney for the plaintifif may postpone such sale, not to exceed four weeks, during which time such attorney may make application to the court to have another person appointed to make such sale. Notice of the postponement of the sale must be published in the paper or papers wherein the notice of sale was published. The terms of the sale must be made known at the sale, and 50. Kelly v. Israel, 11 Paige, 147. ated, if the sale is to take place in 51. "The sheriff who sells real another town or city. property, by virtue of an execution, 2. A copy of the notice must be must previously give public notice published, at least once in each of of the time and place of the sale, the six weeks immediately preced- as follows: ing the sale, in a newspaper pub- " I. A written or printed notice lished in the county, or published thereof must be conspicuously in an incorporated village, a part fastened up, at least forty-two days of which is within the county, if before the sale, in three public there is a newspaper published in places, in the town or city where such county or village; or, if there the sale is to take place, and also is none, in the newspaper printed in three public places, in the town at Albany, in which legal notices or city where the property is situ- are required to be published." (Code of Civ. Proc, § 1434.) 12 178 LAW AND PRACTICE AS TO REFERENCES. if the property, or any part thereof, is to be sold subject to the right of dower, charge, or lien, that fact must be declared at the time of the sale. If the property consist of two or more distinct buildings, farms, or lots they shall be sold separately, unless otherwise ordered by the court; and pro- vided, further, that where two or more buildings are situated on the same city lot, they be sold together. The sale must be at public auction to the highest bidder.s^ It is not a1> 52. Code of Civ. Proc, § 1678. " Where lands in the county of New York or the county of Kings are sold under a decree, order, or judgment of any court, they shall be sold at public auction, between eleven o'clock in the forenoon and three o'clock in the afternoon, un- less otherwise specifically directed." Notice of such sale must be given, and the sale must be had, as prescribed in section 1678 of the Code. Such sales in the county of New York, unless otherwise specifically directed, shall take place at the Ex- change sales rooms, now located at No. Ill Broadway, in the city of New York. " The Appellate Division of the Supreme Court, in the First Depart- ment, is authorized to change the place at which said sales shall be made, may make rules and regu- lations in relation thereto, and may designate the auctioneers or per- sons who shall make the same. " Such sales in the city of Buffalo shall, on and after May i, 1896, take place at the Real Estate Ex- change rooms, between the hours of nine and eleven in the fore- noon, and two and three o'clock in the afternoon, unless the court or- dering the sales shall otherwise direct. Such sales shall, however, be made subject to such regula- tions as the justices of the Su- preme Court of the Eighth District shall establish." (Supreme Court Rule [of 1900] 62.) Sales in first judicial district. — "All sales of real estate, or in- terest or estate therein, made in pursuance of any judgment, decree, or order, or by an officer of the court under its direction, must be made as directed by section 1678 of the Code, and notice of such sale must be given as prescribed in that section. The referee or officer making such a sale shall cause to be published with the notice of sale a diagram of the property to be sold, or of which an interest therein is to be sold, showing the street or avenue upon which such property is located, its street or avenue number, if any, and speci- fying the number of feet to the nearest cross-street or avenue. Where such sale is made to satisfy any lien ir charge upon the real property sold, the approximate amount of such lien or charge shall be stated in a note annexed to such notice of sale, and where there are taxes, assessments, or other liens upon the said property which are to be allowed to the purchaser out ADVERTISING AND CONDUCTING THE SALE. 1 79 solutely necessary to insert the title of the action in the notice of sale, but it is better to do so," and, although the decree directs the sale of the premises in parcels, the notice of sale need not so statc^^* The sale may be adjourned by the referee when, for good cause shown before him, such a course is deemed advisable," of the purchase-money, or which out the consent provided for con- are to be paid by the referee, the stitutes a mere irregularity which referee or officer making such sale does not afifect the title. (Sproule shall also state in a note annexed v. Davies, 69 App. Div. 502, 75 to such notice of sale the approxi- N. Y. Supp. 229.) The Court of mate amount of such charge or Appeals in this case said: " But lien. An unintentional error, how- though we are clear * * * tij^t ever, in such diagram, or in the it was the duty of any judge hold- amount of the lien or charge for ing court to comply with the legis- which the property shall be sold, lative mandate, we think the de- or the amount of such taxes or parture from it in this case did not other lien to be allowed to the affect the validity of the judgment purchaser upon the sale, shall not or the title acquired by the pur- invalidate the sale, nor authorize chaser. Had any of the parties to the court to relieve the purchaser the action appealed from the pro- or order a new sale." (Rule XV, vision of the judgment directing Special Term, Supreme Court, First the sale by the referee, it doubtless District.) would have been reversed and the Sales in Kings county.— The stat- g^le ordered to be made by the ute provides that •' all sales of real sheriff. It may be also that if a estate made in the county of Kings p^^ty to the action had promptly under judgment or decree of any ^^^^j ^^ ^^^ ^^j^j^ ^-^^ ^^^^ ^^^ ^^_ ■court, except sales in actions of ^-^^ ^^^j^ j^^^^ ^^^^ granted, partition, and where the sheriff of g^^ ^^ ^^^^ application was made, said county is a party, and except- ^^^ ^^^^.^^ ^^^ ^^^i^^^^ ^.^^ ^^^ ing where all the parties to the ^^j^ ^^^ ^^^.^^ ^^^ ^^^^.^^ ^^ ^^^^ purchaser to be relieved from it." (Sproule V. Davies, 171 N. Y. 277.) 53. Ray v. Oliver, 6 Paige, 489. 54. Hoffman v. Burke, 21 Hun, suit, both those who do and these* who do not appear, shall execute and file a written stipulation, in due form consenting to a sale by a referee, shall be made by the „ ,, „ ,. tt ,r , . ~ , ^, ., . r -L^- „ " 580; Alcott V. Robinson, 21 N. Y. sheriff of the said county of Kings. -^ (L. 1876, ch. 439, as amended by 'S°_ r-i , „ a t-,- L. 1889, ch. 167.) But the ap- ^^- ^"g^' ^- ^lark, 21 App. Div. pointment of a referee to make 339; 81 St. Repr. (47 N. Y. Supp.) sale in a foreclosure action with- 73i; Barr v. Benzmger, 27 App. Div. 590; 84 St. Repr. (50 N. Y. •So in the original. Supp.) 499; MoUer v. Watts, 56 l80 LAW AND PRACTICE AS TO REFERENCES. and in many cases it is his duty to do so.^^ In a case where a referee, appointed to conduct a sale, informed the attorney for the defendant that the sale would be postponed, and then at the instance of plaintiff's attorney, and in violation of his promise, proceeded to sell the property, the sale was set aside." Notice of the adjournment must be published in the paper or papers wherein the notice of sale was pub- lished,58 but the omission so to do will not vitiate the sale.s^* It is the duty of the referee, at the time and place of sale: First. To announce the terms of sale, if they are not con- tained in the notice of sale. Second. To of¥er the premises to the highest bidder, and receive bids — so long as they are offered, waiting a reasonable time after a bid is made, for another, and if no other is made, to strike off the premises to the highest bidder. Third. After marking down the premises to the highest bidder, to require him to sign a memorandum of the sale, and agreeing to complete the App. Div. 562; loi St. Repr. (67 v. Flood, 66 App. Div. 544; 73 N. N. Y. Supp.) 488; Moir v. Flood, Y. Supp. 364.) 66 App. Div. 544; 107 St. Repr. 57. Angel v. Clark, 21 App. Div. (73 N. Y. Supp.) 364. 339; 47 N. Y. Supp. (81 St. Repr.) 56. Bicknell v. Byrnes, 23 How. 731. 486. 58. Code of Civ. Proc, §1678. A referee is an officer of the 58a. Bechstein v. Schultz, 45 court and as such can grant a Hun, 191; 9 St. Repr. 815; 27 Week, reasonable adjournment of a sale. Dig. 141; 19 Abb. N. C. 168. if, in the exercise of his judgment. On appeal to the Court of Ap- he deem it advisable for the pro- peals the court said; "The omis- tection of the rights of any of the sion to publish the notice of the parties to the action. (Angel v. adjourned sale was an irregularity Clark, 21 App. Div. 339; 47 N. Y. merely, which might have afforded Supp. 731.) It is his duty to see good ground for vacating and set- that the sale is fairly conducted ting aside the sale made, but one and the rights of all parties to it which the parties were competent protected, and to that end he not to waive, and which from the sub- only has the power, but it is his sequent proceedings we must as- duty, if necessary, to adjourn the sume they did waive." (Bechstein sale. (Barr v. Benzinger, 27 App. v. Schultz, 120 N. Y. 168; 30 St. Div. 590; so N. Y. Supp. 499; Moir Repr. 576.) ADVERTISING AND CONDUCTING THE SALE. I»I same.5' Fourth. If, at the time appointed for the sale, there are no bidders, or if from the numbers in attendance, or other sufficient cause, the officer is satisfied that a fair price cannot be obtained, it is his duty to postpone the sale, and not sacrifice unnecessarily the property.^" When terms of sale are clearly stated the purchaser is bound by them, and it is not necessary that the purchaser should sign the memo- randum of sale; the signature of the referee making the sale is sufficient.^' Oral reservation announced at the sale binds a purchaser.^^ The referee may reject bids of parties not ready and able to perform, or who refused tO' perform on 59. I Barb. Ch. Pr. 528. 60. Bicknell v. Byrnes, 23 How. 486. 61. Bicknell v. Byrnes, 23 How. 486; National Fire Ins. Co. v. Loomis, II Paige, 431. In a case where a sale under a decree in foreclosure was made by a sheriff, the plaintiff became the purchaser, and afterward sought to avoid his purchase because no memorandum of sale was signed. The Court of Appeals, per Earl, J., said: "It does not appear that any memorandum of sale was signed by the sheriff or the plain- tiff; and he, therefore, claims that he is not bound by the purchases he has made. But it is clearly set- tled in this state that judicial sales of this kind are not within the statute of frauds, and that they are binding upon the purchaser with- out any written contract or memo- randum of the terms of sale. The sale is made by the court, through the sheriff acting as its officer, and, strictly speaking, there can be no written contract. The purchaser could not sue the court, and it could not sue him upon his con- tract. The sheriff in such a case is under no duty to bind himself personally, or to demand that the bidder shall be bound to him per- sonally; and the bidder is under no obligation to bind himself by con- tract to the sheriff. By bidding he subjects himself to the jurisdic- tion of the court, and in effect be- comes a party to the proceeding, and he may be compelled to com- plete the purchase by an order of the court and by its process for contempt, if necessary. The stat- ute of frauds has no operation in such a case, and so it has fre- quently been decided." (Andrews V. O'Mahoney, 112 N. Y. 567, 572.) In a case where the sale was made by a referee the court held the same doctrine, quoting from the above and citing, in addition. Miller v. Collyer (36 Barb. 250). (See Stokes v. Hoffman House, 167 N. Y. 554, 559.) 62. Banta v. Merchants, 45 App. Div. 141 ; 61 N. Y. Supp. 218. 1 82 LAW AND PRACTICE AS TO REFERENCES. a prior sale.^^ He may also extend time to enable title to be perfected.^* If, by the terms of the sale, the purchase price or any part of it is to be paid down, and the purchaser does not, on demand, comply with the terms of sale in that particular, the referee should at once proceed and ofifer the premises for sale again. ^^ It is the duty of the referee to receive the purchase money; execute and deliver a deed of the premises; pay the expenses of the sale, including his own fees, and the balance as directed by the judgment. If there is a surplus, he must, within five days after its receipt, pay it over to the county treasurer, or, in the city of New York, to the city chamberlain.*^ The 63. Leslie v. Saratoga Brewing expenses of the sale, within the Co., 59 App. Div. 400; 69 N. Y. meaning of that expression, as used Supp. 581; Irving Savings Inst. v. in any provision of articles sec- Robinson, 35 Misc. 449; 71 N. Y. ond, third, or fourth of this title. Supp. 193. (Code of Civ. Proc, § 1676.) 64. Moir v. Flood, 66 App. Div. A tax does not become a lien 544; 73 N. Y. Supp. 364. upon real estate until the tax 65. Bicknell v. Byrnes, 23 How. warrant is issued. (Morgan v. 486; Leslie v. Saratoga Brewing Fullerton, 9 App. Div. 233; 41 N. Co., 59 App. Div. 400; 69 N. Y. Y. Supp. 465. See Coudert v. Supp. 581. Huerstel, 60 App. Div. 83; 69 N. 66. Supreme Court Rule 61. Y. Supp. 778.) The liens referred The referee making a sale under to are those which were liens at a decree for the foreclosure of a the time of the sale — not those mortgage must, unless the judg- which may have become so be- ment otherwise directs, pay all tween the sale and the time of taxes, assessments, and water giving the deed. (Ainslie v. Hicks, rates, which are liens upon the 13 App. Div. 388; 43 N. Y. Supp. property sold, and redeem the 47; Grabfelder v. Tallman, 73 N. property sold from any sales for Y. Supp. 282; 36 Misc. 247.) An unpaid taxes, assessments, or assessment payable in installments water rates, which have not ap- is a lien, although not due. (Bar- parently become absolute. The ker v. Miller, 32 App. Div. 364; 53 sums necessary to make those pay- N. Y. Supp. 283.) ments and redemptions are deemed referee's report of sale and confirmation. 183 referee's deed must comply with the provisions of the statute/'' § 91. Referee's report of sale and confirmation Immedi- ately after the sale and payment of the proceeds, the referee should make and file his report of sale, which should contain a statement of the proceedings under the order directing the sale, and be accompanied with the proper voucher, show- ing that all moneys received on such sale have been paid over, deposited, or otherwise disposed of according to the directions of the order. ^* A decree of foreclosure with sale under it does not per se divest the mortgagor of title, — confirmation of the report being essential to acquiring an absolute title.^^ jf ^^g report of sale is erroneous, the court will permit the referee, in a proper case, to make a new one,''° but a report cannot be sustained by afifidavits showing that 67. Code of Civ. Proc, § 1244; sale; the expense of wfiicfi filing Randall v. Van Ellert, 12 Hun, or recording, and the entry thereof, 577; 54 How. 363; 4 Abb. N. C. 88. shall be allowed in the taxation of "Whenever a sheriff or referee costs; and, if filed with the clerk, sells mortgaged premises, under a he shall enter in the minutes the decree or order, or judgment of the filing of such mortgage and as- court, it shall be the duty of the signments, and the time of filing. plaintifT, before a deed is executed But this rule shall not extend to to the purchaser, to file such mort- any case where the mortgage or gage and any assignment thereof assignments appear, by the plead- in the office of the clerk, unless ings or proof in the suit corn- such mortgage and assignments menced thereon, to have been lost have been duly proved or acknowl- or destroyed, edged, so as to entitle the same 68. Supreme Court Rule 61. to be recorded; in which case, if 69. Peck v. Knickerbocker Ice it has not been already done, it Co., 18 Hun, 183; Astor v. Turner, shall be the duty of the plaintifif 11 Paige, 436; Clason v. Corley, s to cause the same to be recorded, Sandf. 447; Farmers' Loan & at full length, in the county or Trust Co. v. Bankers & Merchants' counties where the lands so sold Tel. Co., 11 Civ. Proc. Rep. 307. are situated, before a deed is ex- 70. Koch v. Purcell, 45 N. Y. ecuted to the purchaser on the Super. 162. 184 LAW AND PRACTICE AS TO REFERENCES. the terms were different from those stated in the report.''' Exceptions to the report may be filed, as provided by the rules of the court/^ by one having an interest in the surplus, although not a party to the action.''^ The order of confir- mation of the referee's report should direct the delivery of the possession of the property to the person entitled thereto.''* § 92. Referee's fees on sale — The fees of a referee ap- pointed to sell real property, pursuant to a judgment in an action of foreclosure, are the same as those allowed to the sheriff, and he is allowed the same disbursements as the sheriff. '5 He is entitled to fifty cents for receiving and en- tering the decree, $2 for advertising the sale, unless it is stayed or settled before sale; and in that case it shall be $1^^ and commissions on the moneys received and paid out at the rate of three per centum upon the sum collected, not exceeding $250, and two per centum upon the residue, ex- cept in the counties of New York, Kings, and Westchester, where the commissions shall not exceed two and one-half per centum upon a sum not exceeding $250 and one and one- quarter per centum upon the residue;" but in nO' case can the referee's compensation exceed $50.'^ Where two mort- gages are foreclosed in one action and the sale is had under one judgment, the referee is not entitled to double fees." Where a judgment is paid before sale the referee is entitled 71. Koch V. Purcell, 45 N. Y. 77. Code of Civ. Proc, § 3307, Super. 162. subd. 7. 72. Supreme Court Rule 30. 78. Code of Civ. Free, § 3307, 73. Koch V. Purcell, 45 N. Y. subd. 11; Caryl v. Stafford, 69 Hun, Super. 162. 318; 53 St. Repr. 426; 23 N. Y. 74. Code of Civ. Proc, § 1675. Supp. 534. 75. Code of Civ. Proc, §§ 3297, 79. Sadler v. Lyon, 21 Civ. Proc. 3307. Rep. 105; 31 N. Y. Supp. 141; 62 76. Code of Civ. Proc, § 3307, St. Repr. 527. subds. 6, 8, II. REFEREES FEES ON SALE. 185 to $50 where the sheriff's fees would have exceeded that sutn.^° If the property sells for $10,000 or upwards the referee may receive such additional compensation as to the court may seem proper;^' and if the property is bid off by a party and the bid is appHed upon that party's demand, as fixed by the judgment, the referee's commission cannot ex- ceed $10.*^ Besides his compensation the referee is also en- titled to his necessary disbursements.^^ A referee whose fees are improperly taxed may appeal.^'* 80. Lockwood v. Fox, 3 Law Bull. 37. 81. Code of Civ. Proc, § 3297, as amended by L. 1895, ch. 241. A referee upon a foreclosure sale is not entitled to additional com- pensation, in a case where the property sells for $10,000 or up- wards, unless he has actually re- ceived and is accountable for $10,000 or more in cash. (Hosmer V. Gans, 14 Misc. 229; 35 N. Y. Supp. 471; Met. Life Ins. Co. v. Bendheim, 93 St. Repr. [59 N. Y. Supp.] 793; Dime Savings Bank v. Pettit, 59 N. Y. Supp. [93 St. Repr.] 794; Schierloh v. Schierloh, 22 Misc. 635; 49 N. Y. Supp. [83 St. Repr.] 1062.) Where a referee makes a sale, and through some defect of parties to the record the title fails, the referee is entitled to the maximum fee permissible, and may maintain an action against the plaintifT for its recovery. He cannot secure it by a motion in the action. (Hover v. Hover, 25 Misc. 95; 54 N. Y. Supp. 693.) 82. Code of Civ. Proc, § 3297; Gunnivan v. Carroll, 4 Law Bull. 6. 83. Ward v. James, 8 Hun, 526; Caryl v. Stafford, 69 Hun, 318; 53 St. Repr. 426; 23 N. Y. Supp. 534- Fees in New York county. — " Sales of real estate hereafter made in the city and county of New York, under the decree or judgment of any court, may be made by the sheriff of said city and county, or by a referee appointed for that purpose, by the judgment or decree, but when any sale is made by any officer other than the sheriff, in an action of foreclosure, no greater sum shall be charged or allowed as fees than the follow- ing: In cases of sale on fore- closure the sheriff shall be entitled to receive the following fees and no more; For receiving order of sale and posting notices of sale, ten dollars; for attending sale, ten dollars; for drawing each deed of premises sold, five dollars; for at- tending and adjourning a sale at the request of the plaintiff in the action or by order of the court, three dollars, but no more than three such adjournments in one action shall be charged for; for making report of sale, five dollars; for paying over surplus moneys. 84. Hobart v. Hobart, 86 N. Y.636. 1 86 LAW AND PRACTICE AS TO REFERENCES. IV. References as to Surplus Moneys.* § 93. Provisions of the statutes and rules. — If there is any- surplus of the proceeds of the sale, after paying the expenses of the sale, and satisfying the mortgage debt and the costs of the action, it must be paid into court, for the use of the person or persons entitled thereto. If any part of the sur- plus remains in court for the period of three months, the court must, if no apphcation has been made therefor, and may, if an appHcation therefor is pending, direct it to be invested at interest, for the benefit of the person or persons three dollars; and all disburse- ments made by him for printers' fees at the rate allowed by law therefor, fees of officers for taking acknowledgments and administer- ing oaths, and all auctioneers' fees actually paid by hira, but not to ex- ceed for such auctioneers' fees twelve dollars for each parcel sep- arately sold, which auctioneers' fees shall be paid by the purchaser of the parcel in addition to the amount bid by him therefor." (L. 1869, ch. 569, as amended by L. 1874, ch. 192; New York Consoli- dation Act, L. 1882, ch. 410, § 1088.) Fees in Kings county. — Same as above, except auctioneers' fees are fixed at ten dollars. (L. 1876, ch. 439-) The provisions of the foregoing statutes have not been superseded by the Code of Civil Procedure; on the contrary, they have been preserved by section 3308, as fol- lows; "The last section, except the limitation of amount contained in subdivision eleventh thereof, does not afifect any special statu- tory provision remaining unre- pealed after this title takes effect relating to the fees and expenses of the sheriff of the city and county of New York, or the sheriff of the county of Kings." (See Lockwood v. Fox, 61 How. S22.) Where, after several adjourn- ments, the property advertised for sale by a referee was sold at pri- vate sale, his fees were limited to the following items: For receiving order and posting notice of sale.... $10.00 Not more than three ad- journments 9.00 besides disbursements. (Brady v. Kingsland, 67 How. 168.) And where parties settled after adver- tisement and before sale the referee was allowed ten dollars. (Lock- wood V. Fox, 61 How. 522.) * For complete practice in " surplus proceedings " see Fiero on Special Actions (2d ed.), vol. I, pp. 445-467. REFERENCES AS TO SURPLUS MONEYS; STATUTE, ETC. 1 8/ entitled thereto, to be paid upon the direction of the court.^^ Any party to the suit, or any person having a Hen upon the mortgaged premises at the time of the sale, may file a claim for it.*^ Any person having filed a claim to the sur- plus moneys arising from the sale may move for a reference to examine and report as to the claims. The motion should be made on an afifidavit stating the surplus, how it arose, the claims filed, and the nature and extent of the claimant's lien. The notice of the application for the reference, vi^ith 85. Code of Civ. Proc, § 1633. See also Supreme Court Rule 61, requiring payment of surplus to county treasurer or city chamber- lain of New York. 86. Supreme Court Rule 64, as follows: "On filing the report of the sale, any party to the suit, or any person who had a lien on the mortgaged premises at the time of the sale, upon filing with the clerk where the report of the sale is filed a notice, stating that he is entitled to such surplus moneys, or some part thereof, and the nature and extent of his claim, may have an order of reference, to ascertain and report the amount due to him, or to any other person, which is a lien upon such surplus moneys, and to ascertain the pri- orities of the several liens thereon, to the end that, on the coming in and confirmation of the report on such reference, such further order may be made for the distribution of such surplus moneys as may be just. The referee shall in all cases be selected by the court. The owner of the equity of redemption, and every party who appeared in the cause, or who shall have filed a notice of claim with the clerk. previous to the entry of the order of reference, shall be entitled to service of a notice of the appli- cation for the reference, and to attend on such reference, and to the usual notices of subsequent proceedings relative to such sur- plus. But if such claimant or such owner has not appeared, or made his claim by an attorney of this court, the notice may be served by putting the same into the post- office, directed to the claimant at his place of residence, as stated in the notice of his claim, and upon the owner in such manner as the court may direct. All official searches for conveyances or in- cumbrances, made in the progress of the cause, shall be filed with the judgment-roll, and notice of the hearing shall be given to any person having or appearing to have an unsatisfied lien upon the mon- eys in such manner as the court shall direct; and the party moving for the reference shall show, by affidavit, what unsatisfied liens ap- pear by such official searches, and whether any, and what other un- satisfied liens are known to him to exist.'' 1 88 LAW AND PRACTICE AS TO REFERENCES. the affidavit on which it is based, should be served upon the owner of the equity of redemption, on each defendant who appeared in the action, and on each person who has filed a claim to the surplus.^'' The court may, in its discretion, order a. reference, or direct an action to be brought to settle the conflicting claims to the surplus.^^ When a reference is ordered the referee must be selected by the court.*' Any person having an interest in the land at the time of the sale is entitled to receive notice of the proceedings for dis- tribution of the surplus.'" Where a person has an equitable lien to the surplus, he may give notice to the referee making the sale, or file it with the clerk, or, if a referee has been appointed, he should present his claim to the referee." 87. Supreme Court Rule 64. 88. Saert v. Jacocks, 6 Paige, 355; Toch V. Toch, 8 App. Div. 299. 89. Supreme Court Rule 64. 90. Clarkson v. Skidmore, 46 N. Y. 297; Douglass V. Woodworth, 51 Barb. 79. A lessee of mortgaged premises, as between him and the owner, is entitled to any surplus arising out of foreclosure sale, up to the loss resulting to him from the extin- guishment of the lease, which is the value of the use of the prem- ises for the remainder of his term, less the rents reserved. (Larkin V. Misland, 100 N. Y. 212.) 91. De Ruyter v. Trustees of St. Peter's Church, 2 Barb. Ch. 555. "Any person claiming the sur- plus arising upon a master's sale of mortgaged premises, or any part of such surplus moneys, may, either in his own name or by his solicitor, give to the master, at any time before the filing of his re- port of sale, a written notice of such claim, stating therein the nature and extent of his claim, and the place of residence of himself or of his solicitor. And the master shall annex to and file with his report of the sale all notices so re- ceived by him; or a notice of such claim upon the surplus may be filed by the claimant with the register, assistant register, or clerk where the report is filed and the surplus moneys are paid by the master. On the coming in and confirmation of the report of the sale, any party to the suit, or any person not a party who had a lien on the mortgaged premises at the time of the master's sale, either by judgment or decree, upon fil- ing with the register, assistant register, or clerk where such sur- plus moneys are deposited, a notice stating that he is entitled to such surplus moneys or some part thereof, and the nature and extent of his claim, may have an order of course referring it to a master REFERENCES AS TO SURPLUS MONEYS; STATUTE, ETC. 1 89 Where there is a surplus arising from the foreclosure of a mortgage by advertisement, a referee may be appointed to ascertain and report the amount due to the several claim- ants and the priorities among them.'''' to ascertain and report the amount due to him or to any other per- son, which is a lien upon such sur- plus moneys, and to ascertain the priorities of the several liens thereon; to the end that, on the coming in and confirmation of the report of such reference, such fur- ther order or decree may be made for the distribution of such surplus moneys as may be just. Every party who appeared in the cause, and every person who shall have delivered such written notice of his claim to the master who made the sale, or who shall have filed such notice with the register, assistant register, or clerk, where the surplus moneys are deposited, previous to the entry of the order of reference, shall be entitled to service of a summons to attend the master on such' reference, and to the usual notices of subsequent proceedings relative to such surplus. But if such claimant has not appeared or made his claim by a solicitor of his court, the summons or notice may be served by putting the same in the post-office, directed to the claimant, at his place of residence, as stated in the notice of his claim. Any person making a claim to such surplus moneys, and who shall fail to establish his claim on the refer- ence before the master, may be charged with such costs as the other parties have been subjected to by reason of such claim; and the par- ties succeeding on such reference may be allowed such costs as the court may deem reasonable. But no costs unnecessarily incurred on such reference, or previous thereto, by any of the parties, shall be al- lowed on taxation, or paid out of such surplus. (Chancery Rule 136.) 91a. Code of Civ. Proc, §§ 2404- 2407. Section 2404 requires that sur- plus moneys arising from a sale under the foreclosure of a mort- gage by advertisement, shall be paid into the Supreme Court in the same manner as if the proceedings to foreclose the mortgage were taken in an action. " § 2405. A person, who had, at the time of the sale, an interest in or lien upon the property sold, or a part thereof, may, at any time before an order is made, as pre- scribed in the next section but one, file in the office of the clerk of the county, where the sale took place, a petition, stating the nature and extent of his claim, and praying for an order directing the payment to him of the surplus money, or a part thereof. " § 2406. A person filing a peti- tion, as prescribed in the last sec- tion, may, after the expiration of twenty days from the day of sale, apply to the Supreme Court, at a term held within the judicial dis- trict, embracing the county where his petition is filed, for an order, pursuant to the prayer of his peti- tion. Notice of the application must be served, in the manner pre- scribed in this act for the service of igO LAW AND PRACTICE AS TO REFERENCES. § 94. The hearing, and what may be shown thereon The hearing before the referee is brought on in the same manner as other interlocutory references.'^ The general rules of evidence apply the same as in the trial of an action.'^ The referee may examine every question tending to show the equities of the claimants, and his determination con- cludes the parties on the questions litigated before him, when confirmed by the court ;'■♦ but the validity of a judgment can- not be attacked collaterally in the proceeding, except on grounds of jurisdiction.ss The authority of a referee on surplus proceedings is as extensive as the claims themselves, and the objections that may be made to their allowance, and his report will not be set aside simply on account of an irregularity in receiving or considering the claims which were not filed with the county clerk. The provisions of rule 64 as to notice are not intended to be restricted to liens appearing upon the record, but apply to any which may be shown to exist.'^ A simple contract creditor has a paper upon an attorney in an son, which is a lien upon the sur- action, upon each person, who has plus money; and the priorities of filed a like petition, at least eight the several liens thereupon. Upon days before the application; and the coming in and the confirmation also upon each person, upon whom of the referee's report, the court a notice of sale was served, as must make such an order for the shown by the affidavit of sale, or distribution of the surplus money upon his executor or administrator, as justice requires." But if it is shown to the court, by 92. See ante, i 72; Hulbert v. affidavit, that service upon any per- McKay, 8 Paige, 651. son, required to be served, cannot 93. Mutual Life Ins. Co. v. An- be so made with due diligence, thony, 50 Hun, loi. notice may be given to him in any 94. McRoberts v. Pooley, 12 Civ. manner which the court directs. Proc. Rep. 139; Crombie v. Rosen- "§ 2407. Upon the presentation of stock, 19 Abb. N. C. 312; Mutual the petition, with due proof of no- Life Ins. Co. v. Anthony, 23 Week, tice of application, the court must Dig. 427. make an order, referring it to a 95. White v. Bell, 73 N. Y. 256. suitable person, to ascertain and re- 96. Kingsland v. Chetwood, 39 port the amount due to the pe- Hun, 602. titioners and to each other per- THE HEARING AND THE REPORT. I9I no lien upon the funds,''' but the inchoate right of mechanics and materialmen seem to be regarded as in the nature of liens.*^ The owner of a lien who is not a party to the action and is not cut off by the judgment can have nO' claim to the surplus,^' neither can prior lienors. '°° It is the duty of the referee to examine, adjust the equities between subsequent lienors,'"' and to hear and determine any claims, where the facts alleged would authorize an action in equity to deter- mine the lien.'°^ The testimony of the witnesses should be signed as required by the rules of the court. '°^^ § 95. The report — The general form of the report is the same as in other interlocutory references. '"^ It should show that all the parties entitled to notice were duly summoned'"" who appeared at the hearing ;'°5 it should show the whole surplus arising from the sale and who is entitled thereto;'"^ it should contain all the facts found by the referee,'"'' with the referee's conclusions thereon.'"^ The referee should file with his report the testimony signed by the witnesses. '"^ The report is not conclusive upon the court. The court has ample power to confirm, set aside, or refer the same back 97. Delafield v. White, 19 Abb. Hun, 133; Tator v. Adams, 20 Hun, N. C. 104. 131. 98. Livingston v. Mildrum, 19 N. 102. Crombie v. Rosenstock, 19 Y. 440. Abb. N. C. 312. 99. Winslow v. McCall, 32 Barb. 102a. Supreme Court Rule 30. 241; Bache v. Doscher, 67 N. Y. 103. See ante. § 74. 429; Emigrant Ind. Sav. Bank v. 104. Hulbert v. McKay, 8 Paige, Goldman, 75 N. Y. 127. 652; German Savings Bank v. 100. De Ruyter v. St. Peter's Sharer, 25 Hun, 409. Church, 2 Barb. Ch. 555. 105. Franklin v. Van Cott, 11 101. James v. Hubbard, I Paige, Paige, 129. 228; Snyder v. Stafford, II Paige, 106. Franklin v. Van Cott, II 71; Oppenheimer v. Walker, 3 Hun, Paige, 129. 30; New York Life Ins. & Trust 107. Bigelow v. Doying, 36 St. Co. V. Vanderbilt, 12 Abb. 458; Repr. 636. Savings Bank of Utica v. Wood, 17 108. Supreme Court Rule 64. 109. Supreme Court Rule 30. 192 LAW AND PRACTICE AS TO REFERENCES. for further proofs/'" or the court may direct a dififerent dis- position to be made of the fund from that reported by the referee.'" On the motion for confirmation the referee's report is treated as a special verdict for the information of the court,"^ and when the report of the referee, in proceed- ings for the distribution of surplus moneys, is confirmed by the court, it becomes a valid and binding judgment."^ § 96. Referee's fees and costs — The referee in proceed- ings of this nature is entitled to the same fees — $10 per day — as in other cases."* On application for surplus on foreclosure no costs can be allowed except motion costs and the fees of the referee; the hearing before the referee is not a trial, and no extra allowance can be made."^ Unsuccess- ful claimants who have caused unnecessary expense may be charged with costs. "^ One litigating in good faith will not be charged with costs.'"" The costs should be taxed and inserted in the order directing payment. 110. Mutual Life Ins. Co. v. 112. Kirby v. Fitzpatrick, 18 N. Salem, 3 Hun, 117; S T. & C. 246. Y. 484., In this case the court said: "The 113. McRoberts v. Pooley, 12 object of making the reference is, Civ. Proc. Rep. 139. as is well recited in the seventy- 114. Code of Civ. Proc, § 3296. seventh (now sixty-fourth) rule of 115. McDermott v. Hennesy, 9 the court, 'to the end that on the Hun, 59; Wellington v. Ulster coming in and confirmation of the County Ice Co., 5 Week. Dig. 104; report, such order may be made for Borland v. AUeond, 8 Daly, 126; the distribution of such surplus Matter of Gibbs, 58 How. 502; El- moneys as may be just.' While the well v. Robbins, 43 How. 108; moneys remain in court undistrib- German Savings Bank v. Sharer, uted, the equitable powers of the 25 Hun, 409. court over the proceedings must be 116. Lawton v. Sager, II Barb, complete; and in opening the con- 349; Bevier v. Schoonmaker, 29 firmation and referring the matter How. 411; Borland v. Alleond, 8 to the referee for further proofs, Daly, 126. the court acts in the exercise of 117. Farmers' Loan & Trust Co. such powers." v. Millard, 9 Paige, 620; Norton v. 111. Dold V. Haggerty, 11 Re- Whiting, i Paige, 578. porter, 746. REFERENCES OF ISSUES IN PARTITION. 1 93 CHAPTER 11. REFERENCES IN PARTITION. Section 97. References of the issues. 98. References on default. 99. References to sell in action for partition. § 97. References of the issues — The issues of fact joined in an action for partition are triable by a jury.' A compul- sory reference of all the issues cannot be ordered,^ but a reference may be ordered to determine issues incidentally arising on the trial.^ A reference to hear and determine all the issues may be made on consent of the parties;'* so may a reference to take proof and report, with findings ;5 and if a reference is allowed to be made and proceed to judgment without objection, consent will be presumed.^ If a reference to hear and determine is ordered, the proceed- ings before the referee are the same as in other references of the issues and judgment may be perfected in the same manner.'' The referee in an action for partition should direct the form of decree to be entered,^ and the clerk is required to enter judgment upon the report when its form has been settled by the referee.' If the referee does not settle the form of the decree it should be settled by the court and en- tered upon its direction." 1. Code of Civ. Prot., § 1544; 6. Macy v. Nelson, 62 N. Y. 638. Casserly v. Wallace, 61 How. 240. 7. Code of Civ. Proc, § 1228. 3. Larder v. Granger, 51 St. 8. Vagen v. Birngruber, 9 St. Repr. 185. Repr. 729. 3. Salisbury v. Slade, 22 App. 9- Paget v. Melcher, 26 App. Div. Div. 346; 48 N. Y. Supp. 55- 12. 4. Code of Civ. Proc, §§ loii, 10. Vagen v. Birngruber, 9 St. 1012. Repr. 729. 5. Thurber v. Chambers, 4 Hun, 721; 66 N. Y. 42. 13 194 LAW AND PRACTICE AS TO REFERENCES. § 98. References on default — Where a defendant has made default in appearing or pleading, or where a party is an in- fant, the court must ascertain the rights, shares, and inter- ests of the several parties in the property, by a reference or otherwise, before interlocutory judgment is rendered in the action." Where the rights and interests of the several par- ties, as stated in the complaint, are not denied or contro- verted, if any of the defendants are infants or absentees, or unknown, the plaintifif, on affidavit of the fact, and notice to such of the parties as have appeared, may apply at a Special Term for an order of reference, to take proof of the plaintiff's title and interest in the premises, and of the sev- eral matters set forth in the complaint; and to ascertain and report the rights and interests of the several parties in the premises, and an abstract of the conveyances by which the same are held. Such referee shall in all cases be selected by the court. "^ A reference must also be had in the case of partition in an action for waste. '' The practice in applying 11. Code of Civ. Proc, § 1545. common, the court must ascertain In an action for partition, an them, by a reference or otherwise. order of reference as to the rights, If it appears that there are persons, shares, and interests of the several not parties to the action, who must parties is only authorized where have been made parties to an ac- one of the parties is an infant or tj^jj f^^ the partition of the prop- an appHcation is made for judg- ^^ty, they must be brought in by ment by default. (Levine v. Gold- ^ supplemental summons, and, if smith, 71 App. Div. 204; 75 N. Y. ^g^ggj^^y, supplemental pleadings Supp. 706.) „ , ^^ must be made. When the rights 12. Supreme Court Rule 66. , . ^ .. i ,1 ^i ,„ „ , , ^. „ » , and interests of all the parties are 13. Code of Civ. Proc, § 1657. . , ■ . , ^ ■ j „ . ^ 7 , , . -J ^ j: ascertained, an interlocutory judg- § 1657. Interlocutory judgment for ' . . partition.-Wh^re the plaintifif elects '"^"t ^°' ^^^ partition and sale of to have partition, as prescribed in *^ property must be rendered, and the last section, if the pleadings, the subsequent proceedings thereon verdict, report, or decision do not ™ust be the same, as in an action determine the rights and interests for the partition of the property, of the several parties in the prop- except as otherwise provided in the erty so held in joint tenancy or in next section. REFERENCES ON DEFAULT IN PARTITION. 1 95 for a reference in partition and the method of bringing the matters referred to a hearing is the same as in foreclosure actions."* Where the matter is brought before the referee for a hear- ing, he should require the plaintiff to produce abstracts of his title, as tenant in common of the premises, and to trace it back to the common source of title of the several tenants in common, and give, in his report, an abstract of the con- veyances of the several undivided shares or interests of the parties in the premises, from the time the several shares were united in one common source.'^ The plaintiff is re- quired to make such proof of his title before the referee as would enable him to recover in an action of ejectment.'* Such searches should cover a period of twenty years, at least.'^ The referee is not required to annex searches to his report on title, if he states that he caused search to be made and what incumbrances there are.'^ The referee should examine witnesses as to any fact bearing upon the question referred to him. After receiving all the evidence he must make up and sign his report and deliver it to one of the parties or file it with the clerk as in other interlocutory ref- erences. '^ It is his duty to take the evidence and report it to the court, with his conclusions; and if he states all the " § 1659. View of the premises. — court may, in its discretion, by In an action for waste, it is not order, direct a view by the jury.'' necessary, either upon the execu- 14. Ante, § 85. tion of a writ of inquiry, or upon 15. Hamilton v. Morris, 7 Paige, the trial of an issue of fact, that the 39. jury, the judge, or the referee, 16. Larkin v. Mann, 2 Paige, 27. should view the property. Where 17. Hall v. Partridge, 10 How. the trial is by a referee, or by the 188. court without a jury, the referee or 18. Noble v. Cromwell, 3 Abb. the judge may, in his discretion, Ct. App. Dec. 382; 27 How. 289; view the property, and direct the affg. 26 Barb. 475; 6 Abb. 59. attorneys for the parties to attend 19. Ante, § 74. accordingly. In any other case, the 196 LAW AND PRACTICE AS TO REFERENCES. facts correctly, but errs in his judgment of the legal conse- quences following those facts, the court may correct the report in that respect without sending it back to the referee, although no exceptions have been taken/" Upon the appli- cation for the confirmation of the report and for entry of interlocutory judgment thereon, the parties in interest are entitled to be heard upon any question adjudicated in the report, and which may be disposed of by the interlocutory judgment, and the filing of exceptions to the report of the referee on a partition action is unnecessary and unavailing.^' Before an interlocutory reference for the sale of real prop- erty is rendered, in an action for partition, the court must, either with or without application by a party, direct a refer- ence, to ascertain whether there is any creditor, not a party, who has a lien on the undivided share or interest of any party. But the court may direct or dispense with such a reference, in its discretion, where a party produces a search, certified by the clerk, or by the clerk and register, as the case requires, of the county where the property is situated; and it appears therefrom, and by the afifidavits, if any, pro- duced therewith, that there is no such outstanding lien.^^ Where a reference is directed, as prescribed in the last sec- tion, the referee must cause a notice to be published once in each week for six successive weeks in such newspaper published in the county wherein the place of trial is desig- nated as shall be designated by the court directing said reference, and also in a newspaper published in each county 20. Austin v. Ahearne, 61 N. Y. 6. be recognized nor is it required for 21. Winfield v. Stacom, 40 App. protecting the rights of any party." Div. 9S; 57 N. Y. Supp. 563. The (Citing Doremus v. Doremus, 76 court said: " It is settled by au- Hun, 337; 59 St. Repr. 324; 27 N. thority that the filing of exception Y. Supp. 1039.) to reports of this character will not 22. Code of Civ. Proc, § 1561. REFERENCES ON DEFAULT IN PARTITION. 197 wherein the property is situated, requiring each person not a party to the action, who, at the date of the order, had a Hen upon any undivided share or interest in the property, to appear before the referee, at a specified place, and on or before a specified day, to prove his hen, and the true amount due or to become due to him by reason thereof. The referee must report to the court with all convenient speed the name of each creditor whose lien is satisfactorily proved before him, the nature and extent of the lien, the date thereof, and the amount due or to become due thereupon. "^^ x^g referee 23. Code of Civ. Proc, § 1561. The chancery rule with respect to the practice under an order of ref- erence to ascertain liens is still ap- plicable and is as follows: " Where the whole premises of which par- tition is sought are so circum- stanced that a partition thereof cannot be made without great prejudice to the owners, due regard being had to the power of the court to decree compensation to be made for equality of partition, and to the ability of the respective parties to pay a reasonable compensation to produce such equality, or where any lot, or separate parcel of the prem- ises, which will exceed in value the share to which either of the ten- ants in common may be entitled is so circumstanced, the complainants, upon stating the fact in the affidavit which- is to be filed for the pur- pose of obtaining an order of ref- erence under the next preceding rule, may have a further provision inserted in such order of reference, directing the master to inquire and report whether the whole premises, or any lot or separate parcel thereof, are so circumstanced that an actual partition cannot be made; and that if the master arrives at the conclusion that a sale of the whole premises or of any lot or parcel thereof will be necessary, that he specify the same in his re- port, together with the reasons which render a sale necessary; and in such a case that he also ascer- tain and report whether any cred- itor not a party to the suit has a specific lien, by mortgage, devise, or otherwise, upon the undivided share or interest of any of the par- ties in that portion of the premises which it is necessary to sell; and if he finds that there is no such specific lien in favor of any person not a party to the suit, that he further inquire and report whether the undivided share or interest of any of the parties in the premises is subject to any general lien or incumbrance, by judgment or de- cree; and that he ascertain and re- port the amount due to any party to the suit who has either a gen- eral or specific lien on the premises to be sold, or any part thereof, and the amount due to any creditor, not a party, who has a general lien on any undivided share or interest therein, by judgment or decree, and 198 LAW AND PRACTICE AS TO REFERENCES. must advertise as prescribed by statute i^'* but the advertise- ments above mentioned need not be published in more than one newspaper, where the county of trial and the county in which the property is situate are one and the same.^'* The court may direct a reference to inquire into the lien of judgments recovered against executors, although not strictly statutory liens upon the lands, when they are charge- able thereon, there being no personal estate/^ The referee may take proof and pass upon the question as to the validity of a mortgage, upon an individual share claimed by one of the parties, although the pleadings do not raise that issue.^* § 99. References to sell in action for partition If the commissioners, appointed to make partition of the property, report that partition thereof cannot be made, the whole property, or any distinct parcel thereof, the court may order a sale thereof by a referee.^'' The manner of advertising who shall appear and establish his Where a lienor is not a party to claim on such reference. The the action the only way in which tnaster, if requested by the parties the court can acquire jurisdiction who appear before him on such ref- of him and his rights is by the pub- erence, shall also ascertain and re- lication of a notice under the pro- port the amount due to any cred- visions of section 1562 of the Code itor, not a party to the suit, which of Civil Procedure. But such pub- is either a specific or general lien lication is at best only constructive or incumbrance upon all the shares notice, and to give it effect as such, or interests of the parties in the it must be in strict compliance with premises to be sold, and which the statute. (Hallet v. Righters, 13 would remain as an incumbrance How. 43.) thereon in the hands of the pur- Section 1578 makes the judgment chaser; to the end that such di- in an action for partition a bar to rections may be given in relation to the rights of the lienor only in case the same, in the decree for the sale notice " was given * * * as pre- of the premises, as shall be most scribed in section 1562 of this act." beneficial to all the parties inter- (O'Grady v. O'Grady, 55 Hun, 40.) ested in the proceeds thereof on 25. Piatt v. Piatt, 4 St. Repr. 50. suc-h sale. (Chancery Rule 178.) 26. Halsted v. Halsted, 55 N. Y. 24. Connor v. Connor, 20 Civ. 442. Proc. Rep. 308; 36 St. Repr. 823; 27. Code of Civ. Proc, § 1560. 13 N. Y. Supp. 402. REFERENCES TO SELL IN PARTITION. I99 and conducting the sale is the same as in an action for the foreclosure of a mortgage.^^ The parties may waive a strict compliance with the judgment ;^9 otherwise the terms of the judgment must be strictly followed.^" If the referee disregards the directions of the judgment to pay ofi the liens and sells subject to all liens, the sale should be set aside.^' Where a sale is made in partition, within three years from the death of the former owner, the purchaser may have a reference to ascertain whether there are any unpaid debts of the ancestor, for payment of which the land might be sold under the order of the surrogate, and whether any will was left by him; and if either matter be found in the affirmative, the purchaser must be discharged from his purchase. ^^ Oral notice, at a sale, of the reservation of a growing crop, binds the purchaser although not men- tioned in the interlocutory judgment, the terms of sale, or the referee's deed." The fees of a referee to sell, in an action for partition, are the same as those allowed to a sheriff, and he is entitled to the same disbursements. In case he is required to take se- curity upon a sale, or to distribute, or apply, or ascertain and report upon the distribution or application of any of the proceeds of the sale, he is also entitled to one-half of the commissions upon the amount so secured, distributed, or apphed, allowed to an executor for receiving and paying out money; but his compensation, including commissions, cannot exceed $500.3'* The commissions are to be computed only 28. Ante, § 90. 32. Disbrow v. Folger, 5 Abb. 29. Wiggins v. Howard, 22 Hun, 53; Mahoney v. Allen, 18 Misc. 134; 126; affd., 83 N. Y. 613. 42 N. Y. Supp. 11. 30. Wiggins v. Howard, 22 Hun, 33. Banta v. Merchant, 45 App. 126; affd., 83 N. Y. 613; Euston v. Div. 141; 61 N. Y. Supp. 218. See Pickersgill, 55 N. Y. 310; Weseman also Leonard v. Clough, 133 N. Y. V. Wingrove, 85 N. Y. 353. 292, 297. 31. Hobart v. Hobart, 58 Barb. 34. Code of Civ. Proc, § 3297. 296. 200 LAW AND PRACTICE AS TO REFERENCES. on the sums actually received and paid out; it cannot be allowed on the amount of a mortgage, subject to which the sale is made.^^ Fees are allowed only on completed sales.^^ They are not affected by the law regulating referees' fees in New York county.^^ Immediately after completing the sale, the referee must file with the clerk his report thereof, under oath, containing a description of each parcel sold, the name of the purchaser thereof, and the price at which it was sold.^^ A referee may then be appointed to make distribution, ^^ and if he delays distribution he is chargeable with such interest as he could have obtained therefor/" He may take security on such sale when so authorized by the judgment.'*' 35. Strauss v. Hellman, 58 How. 38. Code of Civ. Proc, § 1576. m. 39. Piatt V. Piatt, 42 Hun, 592. 36. James v. Walbridge, 16 Hun, 40. Kepler v. Merkle, 9 Civ. 8; 56 How. 185. Proc. Rep. 285. 37. L. 1869, ch. 569, as amended 41. Code of Civ. Proc, § 1243. by L. 1874, ch. 192; Maher v. O'Connor, 61 How. 103. REFERENCES OF ISSUES IN ACTIONS FO-R DOWER. 201 CHAPTER III. REFERENCES IN ACTIONS FOR DOWER. Section loo. References of the issues. loi. Interlocutory judgment; its form. 102. Oath of referee. 103. Mode of procedure. 104. The report. 105. Recovery of damages in dower. 106. Other references in actions for dower. § 100. References of the issues — Reference of the issues in an action for dower may be made by consent of the par- ties, in the same manner as any other action;' and, in a proper case, the court may order a reference of the issues or to report the referee's findings, upon one or more specific questions of fact involved in the issue.^ Where a reference of the whole issue is made and a decision made thereon, a further reference must be had to ascertain whether actual partition or admeasurement can be made, without injury to other parties.^ Under a reference of the issues of an action for dower the powers and duties of the referee are necessarily the same as in other references of issues.* Judgment, however, cannot be entered upon the referee's report until confirmation by the court. ^ § loi. Interlocutory judgment; its form. — If the defendant makes default in appearing or pleading; or if the right of 1. Code of Civ. Proc, I 101 1. taining whether actual admeasure- 2. Code of Civ. Proc, § 1013. ment or partition can be made, 3. O'Dougherty v. Remington after a decision of the referee as to Paper Co., 42 Hun, 192; 5 St. Repr. the rights of the parties under the 136. issue and before the judgment de- 4. Code of Civ. Proc, § 1018. clearing such rights is entered. 5. Code of Civ. Proc, § 1607. (O'Dougherty v. Remington Paper A reference must be had in all Co., 42 Hun, 192; 5 St. Repr. 136.) cases, for the purpose of ascer- 202 LAW AND PRACTICE AS TO REFERENCES. the plaintiff to dower is not disputed by the answer; or if it appears, by the verdict, report, or decision upon a trial, that the plaintiff is entitled to dower in the real property described in the complaint, an interlocutory judgment must be rendered; which, except as otherwise prescribed in this article, must direct that the plaintiff's dower in the property, particularly describing it, be admeasured by a referee, desig- nated in the judgment, or by three reputable and disinter- ested freeholders, designated therein as commissioners for that purpose.* § 102. Oath of referee — Each of the commissioners, or the referee, as the case requires, must, before entering upon the execution of his duties, subscribe and take an oath, be- fore an officer specified in section 842 of this -act, to the effect that he will faithfully, honestly, and impartially dis- charge the trust reposed in him. The oath must be filed with the clerk before a commissioner or a referee enters upon the execution of his duties. The court may, at any time, remove the referee or either of the commissioners.^ § 103. Mode of procedure. — The referee or the commis- sioners must execute their duties in the following manner: I. They must, if it is practicable, and, in their opinion, for the best interests of all the parties concerned, admeasure and lay off, as speedily as possible, as the dower of the plain- tiff, a distinct parcel, constituting the one-third part of the real property of which dower is to be admeasured, desig- nating the part so laid off by posts, stones, or other perma- nent monuments.^ 6. Code of Civ. Proc, § 1607. 8. Code of Civ. Proc, 5 1609, 7. Code of Civ. Proc, § 1608. subd. I. REFERENCES IN DOWER; MODE OF PROCEDURE. 2O3 2. In making the admeasurement, they must take into consideration any permanent improvements, made upon the real property, after the death of the plaintiff's husband, or after the alienation thereof by him; and, if practicable, those improvements must be awarded within the part not laid off to the plaintiff; or, if it is not practicable so to award them, a deduction must be made from the part laid off to the plain- tiff, proportionate to the benefit which she will derive from so much of those improvements as is included in the part laid off to her.5 3. If it is not practicable, or if, in the opinion of the ref- eree or commissioners, it is not for the best interests of all the parties concerned, to admeasure and lay off to the plain- tiff a distinct parcel of the property, as prescribed in the foregoing subdivisions of this section, they must report that fact to the court.'" 4. They may employ a surveyor, with the necessary assist- ants, to aid in the admeasurement." While the parties are entitled tO' notice of all proceedings of and before the referee," a confirmation of the report will not be denied upon the ground that no formal notice was given, where it is shown that the parties had actual knowl- edge, and no injustice is done;'^ and where an heir refused, upon request, to show the premises and he refused to have anything to do with the business, it was held sufficient notice and also a waiver of all further notice.'* Where a widow, after having recovered in ejectment for dower, applies to have 0. Code of Civ. Proc, § 1609, 12. Matter of Watkins, 9 Johns, subd. 2. 24s. 10. Code of Civ. Proc, § 1609, 13. Smith v. Smith, 6 Lans. 313. subd. 3. 14- Matter of Watkins, 9 Johns. 11. Code of Civ. Proc, § 1609, 245. subd. 4. 204 LAW AND PRACTICE AS TO REFERENCES. her dower admeasured, notice to all the owners of the free- hold is not essential; notice to the attorney of the parties is sufficient. '5 The widow is not entitled to be endowed in each separate parcel of land which had been owned by her husband during the period of the marriage. There may be set ofi, as the dower of the widow, a separate and distinct parcel of real estate, and this must be done where it can be, and at the same time be for the best interests of all parties concerned.'^ The referee has no power to impose easements upon ad- joining property not set ofif to the doweress; both the doweress and the owners of other property are entitled to the exclusive and complete possession of their lands.'' Where the property was alienated during the life of the hus- band, the dower is to be computed upon the value at the time of such alienation; subsequent improvements cannot be included.'^ A grantee of the husband cannot set up a mort- gage which was a lien upon the premises at the time of the marriage, against a widow's claim for dower.'' Though dower must, in general, be assigned by metes and bounds, yet, where the subject-matter is of such a nature that no di- version can be made which will give parties the enjoyment of the respective shares in severalty, it may be assigned so as to give the widow one-third of the profits, or the parties may have an alternate occupation of the whole.-^° 15. Stewart v. Smith, 4 Abb. Ct. subd. 2; Marble v. Lewis, 53 Barb. App. Dec. 306; I Keyes, 59; modify- 432; 36 How. 337; Raynor v. Ray- ing 30 Barb. 167. nor, 21 Hun, 36; Sidway v. Sidway, 16. Price v. Price, 41 Hun, 486; 52 Hun, 222; Walker v. Schuyler, 4 St. Repr. 25; II Civ. Proc. Rep. 10 Wend. 480. 349. 19. Bartlett v. Musliner, 28 Hun, 17. Price v. Price, 54 Hun, 349; 235. 27 St. Repr. no; 7 N. Y. Supp. 474. 20. White v. Story, 2 Hill, 543; 18. Code of Civ. Proc, § 1609, Coates v. Cheever, i Cow. 460. REFERENCES IN DOWER; REFEREE S REPORT. 205 § 104. The report — The referee, or the commissioners, or a majority of them, must make a full report of all their pro- ceedings, specifying therein the manner in which they have discharged their trust, with the items of their charges, and a particular description of the portion admeasured and laid off to the plaintiff; or, if they report that it is not practicable, or, in their opinion, it is not for the best interests of all the parties concerned, to admeasure and lay off a distinct parcel of the property, of which dower is to be admeasured, they must state the reasons for that opinion, and all the facts re- lating thereto. The report must be acknowledged or proved, and certified, in like manner as a deed to be recorded, and must be filed in the office of the clerk. ^' Notice of the filing of the report should be given to all defendants who have appeared, and they must file excep- tions within eight days.^"" If exceptions are filed, the court, upon a motion for confirmation of the report, may either con- firm it or send it back to the referee for further action.^' Upon the application of any party to the action, and upon good cause shown, the court may set aside the report, and, if necessary, appoint new commissioners, or a new referee, who must proceed as prescribed in this title, with respect to those first appointed.^'* The fees and expenses of the commissioners, or of the referee, including the expense of a survey, when it is made, must be taxed under the direction of the court; and the amount thereof must be paid by the plaintiff, and allowed to her, upon the taxation of her costs.^s 'pj^g statute fixes the fees of a surveyor employed as prescribed by law, in an action for dower, or to determine dower, at five dollars for 21. Code of Civ. Proc, § 1610. 24. Code of Civ. Proc, § 161 1. 22. Supreme Court Rule 30. 25. Code of Civ. Proc, § 1612. 23. Price v. Price, 41 Hun, 486. 206 LAW AND PRACTICE AS TO REFERENCES. each day actually and necessarily occupied in surveying, lay- ing out, marking, or mapping lands therein ;^^ and each assist- ant actually and necessarily serving under the surveyor's di- rection is entitled to two dollars per day.^' By the same statute the fees of commissioners appointed for admeasure- ment of dower is fixed at five dollars per day; but the fees of a referee for the same service is not specifically fixed, and it must be assumed that such fees are fixed by the provision relating to fees of referees generally/* § 105. Recovery of damages in dower. — Where a widow recovers, in an action therefor, dower in property of which her husband died seized, she may also recover, in the same action, damages for withholding her dower, to the amount of one-third of the annual value of the mesne profits of the property, with interest; to be computed where the action is against the heir, from her husband's death, or where it is against any other person, from the time when she demanded her dower of the defendant; and, in each case, to the time of the trial, or application for judgment, as the case may be; but not exceeding six years in the whole. The damages shall not include anything for the use of permanent improve- ments, made after the death of the husband.^^ This provision of the statute assumes that the right to dower exists; and such damages can only be computed from the time such right accrued. 3° Mesne profits are not re- coverable until dower has been assigned.^' Where the premises were aliened during the lifetime of the husband, the damages can be recovered only from the time dower was 26. Code of Civ. Proc, § 3299. 30. Winter v. Ecke<-t, r7 Week. 27. Code of Civ. Proc., § 3299. Dig. 166. 28. Code of Civ. Proc, § 3296. 31. Kyle v. Kyle, 67 N. Y. 400. 29. Code of Civ. Proc, § 1600. RECOVERY OF DAMAGES IN DOWER. 20/ demanded, 3^ while an heir-at-law is liable from the date of the death of the husband.^^ Where a widow recovers dower, in a case not specified in the last section, she may also recover, in the same action, damages for withholding her dower, to be computed from the commencement of the action; but they shall not include anything for the use of permanent improvements, made since the property was claimed by her husband. In all other respects the same must be computed as prescribed in the last section. ■''^ Where a defendant does not occupy or claim the premises, he is not liable.^s Where a widow recovers dower in real property aliened by the heir of her husband, she may recover, in a separate action against him, her dam- ages for withholding her dower, from the time of the death of her husband to the time of the alienation, not exceeding six years in the whole. The sum recovered from him must be deducted from the sum which she would otherwise be entitled to recover from the grantee; and any sum recovered as damages from the grantee must be deducted from the sum which she would otherwise be entitled to recover from the heir.^^ The acceptance, by a widow, of an assignment of dower, in satisfaction of her claim upon the property in ques- tion, bars an action for dower, and may be pleaded by any defendant ;3'' but to bar the widow of her action for dower, where rent has been assigned to her and accepted by her, it must appear that the rent will endure for her life.^^ 33. Marble v. Lewis, 53 Barb. 38. Ellicott v. Hosier, 7 N. Y. 432; 36 How. 337; Price v. Price, 54 201; affg. 11 Barb. 574. Hun, 349; 27 St. Repr. 110; 7 N. Y. It is not an acceptance which 474. bars a widow's action, that she 33. Price v. Price, 54 Hun, 349; joined for several years with others, 27 St. Repr. no; 7 N. Y. 474. interested in making leases, receiv- 34. Code of Civ. Proc, § 1601. ing a portion of the rents, but less 35. Code of Civ. Proc, § 1602. than her share. (Aikman v. Har- 36. Code of Civ. Proc, § 1603. sell, 63 How. no; afid., 31 Hun, 83; 37. Code of Civ. Proc, § 1604. afid,, 98 N. Y. 186.) 208 LAW AND PRACTICE AS TO REFERENCES. There is no special provision for a reference of the ques- tions presented in this section; but it necessarily follows that a reference may be ordered for a determination of these as well as other questions arising in an action, under the general authority for referring incidental questions.^' § io6. Other references in actions for dower At any time after a consent is filed, as prescribed in section 1617 of the Code of Civil Procedure, and before an interlocutory judgment is rendered, any defendant may apply to the court, upon notice, for an order granting him leave to pay such gross sum; and the court may, in its discretion, and upon such terms as justice requires, order a reference to ascertain the value of plaintiff's right of dower in the prop- gj.^.y.40 2j^(j where the widow's consent to accept a gross sum has been filed, and she is entitled to an interlocutory judg- ment in the action, a referee may be appointed to ascertain and report whether a distinct parcel of the property can be laid off to the plaintiff as tenant in dower without material injury to the interests of the parties.'*' If such distinct par- cel cannot be laid off, a referee may be appointed to make a sale of the property;'*^ but before a sale of the property is ordered the court must direct a reference to ascertain whether any person, not a party, has a lien upon the prop- erty, or any part thereof. The proceedings on such reference are the same as on similar reference in an action for parti- 39. Code of Civ. Proc, I 1015. annual income for life upon a fund See Livingston v. Livingston, 8 in court, it is customary, on-peti- Week. Dig. 328. tion of the party entitled to the 40. Code of Civ. Proc, § 1618. same, to appoint a referee to com- 41. Code of Civ. Proc, § 1619. pute the amount due. (Livingston Where a party elects to accept a v. Livingston, 8 Week. Dig. 328.) gross sum in lieu of dower, or an 42. Code of Civ. Proc, § 1619. REFERENCES IN DOWER; ASCERTAINING LIENS, ETC. 209 tion.« The powers and duties of a referee appointed by the interlocutory judgrnent to make the sale are the same as under a decree in foreclosure.** Immediately after com- pleting the sale, and executing the proper conveyance to the purchaser, the ofificer making the sale must make and file with the clerk a report thereof, showing the name of the purchaser, and the purchase-price paid by him, or, if the property was sold in parcels, the name of each purchaser, and the price and a description of the parcel sold to him; the sums which the ofificer has paid out of the proceeds of the sale, pursuant to the interlocutory judgment; the pur- pose for which each payment was made; the amount and items of his fees and expenses; and the net amount of the proceeds, after deducting the payments.*' Upon filing and confirmation of the report of sale, still another reference may be ordered to ascertain the rights and interests of each of the parties, in and to the proceeds of the sale, and what gross sum of money is equal to the value of the plaintiff's dower in the net proceeds of the sale. Thereupon final judgment is rendered directing payment.*^ 43. See ante, § 98. 46. Code of Civ. Proc, § 1624. 44. Ante, §§ 89-92. 45. Code of Civ. Proc, § 1623. 14 2IO LAW AND PRACTICE AS TO REFERENCES. CHAPTER IV. REFERENCES IN MATRIMONIAL ACTIONS. Section 107. General provisions. 108. References of issues in actions for divorce. 109. What may be shovifn upon the hearing, no. The report, judgment, and review. 111. References as to alimony and counsel fees. 112. References in actions for separation. 113. References in actions to annul a marriage. § 107. General provisions — The Code of Civil Procedure includes under the general title " Matrimonial Actions " an action to annul a void or voidable marriage, an action for a divorce, and an action for a separation.' With respect to references of this class of actions the Code provides that " a reference shall not be made, of course, upon the consent of the parties, in an action to annul the marriage, or for a divorce or a separation."^ Also " where the parties con- sent to a reference, the court may, in its discretion, grant or refuse a reference; and where a reference is granted, the court must designate the referee. "^ Public poHcy, the Code of Civil Procedure, and the General Rules of Practice for- bid the reference of a matrimonial action to a referee agreed upon by the parties.'* If the issues of an action for a divorce on the ground of adultery are referred by consent, the 1. Code of Civ. Proc, ch. XV, by either party nor to a referee tit. I. agreed upon by the parties, nor 2. Code of Civ. Proc, § 1012. without proof by affidavit conform- 3. Id. able to the rules relating to the 4. Pratt v. Pratt, 2 App. Div. 534; manner and proof of the service of Ives v. Ives, 80 Hun, 136. the summons and complaint. No- " Where an action is brought to tice of appearance and retainer obtain a divorce or separation, or shall not be sufficient to excuse to declare a marriage contract void, such proof. (Supreme Court Rule the court shall in no case order a 72.) reference to a referee nominated Where the parties agree upon the REFERENCES OF ISSUES IN ACTIONS FOR DIVORCE. 211 reference should be to hear and decide the issues, and not merely to take evidence and report the same with the referee's opinion.' And where the parties have stipulated for a reference of the issues, the court has no authority, in the absence of a reason suf^cient in law, to vacate the order of reference and direct a new trial. ^ The provisions of the statute authorizing a reference in an action to annul a marriage for physical incapacity of one of the parties embraces only cases in which, from a physical incapacity, other than that which results from sickness, the marriage cannot be consummated.'' § io8. References of issues in actions for divorce. — A ref- erence of the issues in an action for a divorce upon the ground of adultery may be had only by consent of the parties.* The court has no power to order a reference where either party objects,' nor as a condition for granting a favor.'" The qualifications of a referee in an action for a divorce are the same as in other cases." A reference to take evidence and report cannot be made even by consent;'^ but referee, who is appointed by the 6. Ryerson v. Ryerson, 55 Hun, court, and they proceed in disre- 191; 27 St. Repr. 945; 7 N. Y. Supp. gard of the statutory provisions 726. against such appointment, such 7. Morrell v. Morrell, 17 Hun, procedure is not a mere irregu- 324. larity, but the proceedings are un- 8. Code of Civ. Proc, § 1012. questionably void. (Pratt v. Pratt, 9. Batzel v. Batzel, 54 How. 139; 2 App. Div. 534; 74 St. Repr. 454; 42 N. Y. Super. 561; Dietz v. Dietz, 38 N. Y. Supp. 26; 3 N. Y. Annot. 4 T. & C. 565; Code of Civ. Proc, Cas. 140.) § 1757; Baker v. Baker, 3 Law Bull. 5. Sullivan v. Sullivan, 41 N. Y. 93. Super. 519; 52 How. 453; McCleary 10. Cordier v. Cordier, 26 How. V. McCleary, 30 Hun, 154; Harper 187. V. Harper, 5 Week. Dig. 460; Good- 11. Supreme Court Rule 79. rich V. Goodrich, 21 Week. Dig. 12. Harper v. Harper, 5 Week. 264; Bliss V. Bliss, 13 Daly, 489; i Dig. 460. St. Repr. 281; Matthews v. Mat- thews, 53 Hun, 244; 25 St. Repr. 79. 212 LAW AND PRACTICE AS TO REFERENCES. where an order of reference " to hear, try and report to this court with his opinion " was entered upon a stipulation to refer the cause for " hearing, trial, and determination," it was held to be an order for the trial and determination of the issues.'^ The hearing is brought on before the referee in the same manner as on the trial of other issues,"'* and the powers and duties upon such reference are the same. Husband and wife may testify for,'^ but not against, each other, except to disprove the allegation of adultery.'^ The referee must try all the issues raised by the pleadings, especially where coun- ter-charges are set forth in an answer;'^ this will also include the question of the legitimacy of the children of the wife,'^ and the question of the residence of the parties, and when and where the marriage was contracted, '* as to time since 13. Goodrich v. Goodrich, 21 To permit a husband to testify to Week. Dig. 264. facts tending to prove his wife's 14. Ante, §§ 29, 30. adultery is a violation of section 15. Bailey v. Bailey, 41 Hun, 424. 831, that a husband is not com- 16. Code of Civ. Proc, § 831. petent to testify against his wife in A husband or wife is a compe- an action founded on allegations of tent witness to give all testimony adultery, except to prove the mar- that may have a material efifect in riage or disprove an allegation of convincing or persuading the mind adultery. (Colwell v. Colwell, 14 of a referee, judge, or jury, either App. Div. 80; 43 N. Y. Supp. 439. directly or by necessary inference. See also Budd v. Budd, 55 App. that the allegation of adultery is Div. 113; 67 N. Y. Supp. 43.) untrue; and is not confined simply 17. Price v. Price, 9 Abb. (N. S.) to denying such allegation. (Irsch 291; Linden v. Linden, 36 Barb. 61; v. Irsch, 12 Civ. Proc. Rep. 181. Johnson v. Johnson, Lockwood's See also De Meli v. De Meli, 120 Rev. Cas. 141; Supreme Court Rule N. Y. 485; 31 St. Repr. 704; affg. 74- II St. Repr. 291; Stevens v. Stevens, 18. Supreme Court Rule 75. 54 Hun, 490; 27 St. Repr. 602; 8 19. Code of Civ. Proc, § 1756. N. Y. Supp. 47; StefTens v. Steffens, Where parties were married out of 16 Daly, 363; 38 St. Repr. 643; 19 the state, and neither of them was Civ. Proc. Rep. 267; 11 N. Y. Supp. then a resident of the state, — held, 424; Huntley v. Huntley, 57 St. that one cannot maintain an action Repr. 287; 73 Hun, 261; 26 N. Y. for absolute divorce or for separa- Supp. 266.) tion against the other, unless the REFERENCES OF ISSUES IN ACTIONS FOR DIVORCE. 2I3 commission of the adultery,^" and as to whether the same was committed without the consent, connivance, privity, or procurement of the plaintiff.'^' No judgment annulling a marriage contract or granting a divorce, or for a separation or limited divorce, shall be made of course by the default of the defendant, or in conse- quence of any neglect to appear at the hearing of the cause, or by consent/^ A reference cannot be had upon the default of defendant to answer. The hearing must be had before the court. ^^ one suing had resided in the state at least one year, and was, at the time of commencing the action, a resident. (Ramsden v. Ramsden, 28 Hun, 285; 2 Civ. Proc. Rep. 408; affd., 91 N. Y. 281; 2 Civ. Proc. Rep. 418.) Where plaintiff is a resident of this state and was a resident at the time of the commission of the of- fense, the court has jurisdiction regardless of the residence of de- fendant. (Scraggs V. Scraggs, 44 St. Repr. 845; 18 N. Y. Supp. 487-) 20. Zorkowski v. Zorkowski, 2^ How. 37. 21. Myers v. Myers, 41 Barb. 114; Code of Civ. Proc, § I7S8. Where the answer denies the charge of adultery, it is not neces- sary for plaintiff to prove, affirma- tively, allegations that adultery was committed without connivance of plaintiff and that plaintiff has not cohabited with defendant. (Mc- Carthy v. McCarthy, 143 N. Y. 235.) It is connivance for a husband to passively permit his wife to have intercourse with another man when he might have prevented it. (Karger v. Karger, 19 Misc. 236; 44 N. Y. Supp. 219.) But this case seems to have been overruled where the facts proven were almost identical. (See Reierson v. Reier- son, 32 App. Div. 62; 52 N. Y. Supp. 509.) 22. Supreme Court Rule 76; rule 37, fifth paragraph. 23. Supreme Court Rule 72, last paragraph, as follows: " In an action for a divorce or for the annulment of a marriage, where the defendant fails to an- swer, no reference shall be granted, to take proof of the facts stated in the complaint, but before a judg- ment shall be granted the proof of such facts must be made to the court in open court, and a copy of the evidence taken before the court shall be written out and filed with the judgment-roll. The court may, however, in case the evidence is such that the public interest require that the examination of the wit- nesses should not be public, ex- clude all persons from the court- room except the parties to the ac- tion and their counsel and the witnesses, and shall order such evi- dence, when filed with the clerk, sealed up and exhibited only to the parties to the action or some one specially interested upon the order of the court." 214 LAW AND PRACTICE AS TO REFERENCES. § 109. What may be shown upon the hearing Upon the hearing, the referee should receive testimony and pass upon material facts charged in the complaint;^* and where there is a conflict of testimony, if there is sufficient to support the report it will be sustained.^' The confession of the guilty party is competent evidence, if sufficiently corrobo- rated ;'^* but confession alone is not sufficient, and the cor- roboration must be sufficient to remover the suspicion of collusion.^' The uncorroborated testimony of a paramour is not sufficient. ^^ Corroboration of private detectives is sufficient;^' but the unsupported evidence of a detec- tive is not sufficient to overcome the denials of defendant and the corespondent. 3° Existence of marriage, if denied, must be proved by the same class of evidence as other con- tracts, and cohabitation may or may not be corroborative evidence, depending on its character.'' A party who ad- mits a marriage is not a proper witness to prove the 24. Arb'ergast v. Arbergast, 8 Carthy v. McCarthy, 143 N. Y. How. 297. 235.) 25. Whitney v. Whitney, 76 Hun, 29. Winston v. Winston, 34 App. 585; 58 St. Repr. 272; 28 N. Y. Div. 460; 54 N. Y. Supp. 298. Supp. 214. 30. Fries v. Fries, 34 Misc. 478; 26. Mesereau v. Mesereau, 49 70 N. Y. Supp. 295. App. Div. 647; 63 N. Y. Supp. 336. In MoUer v. Moller (115 N. Y. 27. Fowler v. Fowler, 29 Misc. 466; 22 N. E. Repr. 169) it was €70; 61 N. Y. Supp. 108; Lyon v. held that the testimony of private Lyon, 62 Barb. 138. detectives may be so corroborated, 28. Fowler v. Fowler, 29 Misc. by the proof of facts, and circum- 670; 61 N. Y. Supp. loS. stances harmonizing therewith as But in Mott v. Mott (3 App. to induce belief in its truth; and it Div. 532; 73 St. Repr. 742; 38 N. Y. was also said in that case, "A di- Supp. 261) the uncorroborated evi- vorce should not be granted with- dence of prostitutes and private de- out evidence which is, after careful tectives was held insufficient. But scrutiny, satisfactory, and can com- where the husband failed to appear mand the confidence of a careful, as a witness to disprove the prudent, and cautious judge." charges against him, only slight 31. Bullock v. Bullock, 85 Hun, corroboration of the testimony of 373; 66 St. Repr. 493; 32 N. Y. prostitutes was required. (Mc- Supp. 1009. THE REPORT, JUDGMENT, AND REVIEW. 21 5 marriage invalid by reason of a prior marriage.'^ The failure to produce as a witness the person with whom adultery is charged, although defendant is able to do so, creates a strong presumption against defendant.^^ Proof of condonation may not be disregarded because not pleaded.^* As condonation of adultery is a bar to a divorce,^^ the de- fendant must establish it, when relied upon as a defense; but subsequent cohabitation, induced by fraudulent representa- tions of the facts, is not sufficient. ^^ § no. The report, judgment, and review The rule as to a referee's report in an action for a divorce, or for the annul- ment of a marriage, is different than in other cases. In other cases than that of an action for divorce, the report of the referee, on the trial of issues, stands as the decision of the court and entitles the successful party to judgment." But this is not so in an action for divorce. Although the referee has tried the issues and passed upon them and re- ported, yet the report and the testimony must be presented to the court and judgment must be rendered by the court. ^^ The report should state the referee's findings of fact and his 32. Finn v. Finn, 12 Hun, 339. this act. Where a reference is 33. Kenyon v. Kenyon, 88 Hun, made in such an action, the testl- 211; 68 St. Repr. 701; 34 N. Y. mony, and the other proceedings Supp. 720. upon the reference, must be cer- 34. Karger v. Karger, 19 Misc. tified to the court, by the referee, 236; 44 N. Y. Supp. 219. with his report; and judgment 35. Code of Civ. Proc, § 1758. must be rendered by the court." 36. Merrill v. Merrill, 41 App. (Code of Civ. Proc, § 1229.) Div. 347; 58 N. Y. Supp. 503. The reason of this rule is that in 37. Code of Civ. Proc, § 1228. matters of divorce the public have 38. " In an action to annul a an interest. Married parties are marriage, or for a divorce or sepa- not to be permitted, by any collu- ration, judgment cannot be taken, sion between themselves, to obtain of course, upon a referee's report, a judgment of divorce, and it is the as prescribed in the last section, duty of the state, acting through or where the reference was made, its courts, to see that no divorce is as prescribed in section one thou- granted, unless there be real, and sand two hundred and fifteen of not collusive, ground therefor. 2l6 LAW AND PRACTICE AS TO REFERENCES. conclusions.39 It thus serves as a guide to the court in rendering judgment.'"' The court has the power to refuse to confirm the report on the merits;'" it may refuse to con- firm for the reason that the evidence does not support the conclusions of the referee/^ but it cannot order judgment contrary to that directed by the referee. "^^ But if it appears that the proceedings have been regular, free from fraud or collusion, and that the evidence is sufficient to uphold the findings of fact, it is the duty of the court to enter judg- ment upon the report.'*'* Exceptions to the report must be filed and served within eight days after notice of filing of the report,'*^ but leave may be granted to file them nunc pro tunc^^ Motion for judg- ment should be made at Special Term, except in the first judicial district, where it may be at Chambers.'*'' The Special Term has no power, after a trial before a referee, to examine the case upon the merits, or to reverse the report of the referee for errors or irregularities committed on the trial, and the only manner in which the trial before the referee can be reviewed is by an appeal.** Hence it is required that after the thews v. Matthews, 25 St. Repr. 79; trial of the issues before a referee, Gorham v. Gorham, 49 App. Div. not merely his report, but the 564; 58 N. Y. Supp. 50. whole testimony shall be presented 44. Goodrich v. Goodrich, 21 to the court for its action. (Mc- Week. Dig. 264. Cleary v. McCIeary, 30 Hun, 154.) 45. Supreme Court Rule 30. 39. Schroeter v. Schroeter, 23 46. Gade v. Gade, 14 Abb. (N. Hun, 230; McCIeary v. McCIeary, S.) 510; Catlin v. Catlin, 2 Hun, 30 Hun, 154; Sullivan v. Sullivan, 378. 41 N. Y. Super. 519; 52 How. 453. 47. Code of Civ. Proc, § 770; 40. Smith v. Smith, 7 Misc. 305; Robertson v. Robertson, 9 Daly, 58 St. Repr. 552. 44; Smith v. Smith, 4 Law Bull. 57. 41. Gorham v. Gorham, 40 App. 48. Huntley v. Huntley, y^ Hun, Div. 564; 58 N. Y. Supp. 50. 261; 57 St. Repr. 287; 26 N. Y. 42. Phillips v. Phillips, 24 Misc. Supp. 266; Schroeter v. Schroeter, 334; 52 N. Y. Supp. 489; Rice v. 23 Hun, 230; Ross v. Ross, 31 Hun, Rice, 22 Week. Dig. 258. 140; Greene v. Greene, 14 Week. 43. Goldner v. Goldner, 49 App. Dig. 139. Div. 305; 63 N. Y. Supp. 431; Mat- REFERENCES AS TO ALIMONY AND COUNSEL FEES. 21J § III. References as to alimony and counsel fees (A.) Alimony pendente lite. The court may, in its dis- cretion, from time to time during the pendency of an action for divorce or for a separation, make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action, or to provide suitably for the educa- tion and maintenance of the children of the marriage, or for the support of the wife, having regard to the circum- stances of the respective parties.*' To aid the conscience of the court in determining what is just as between the parties a reference may be ordered to determine whether any, and if so what, alimony and counsel fee ought to be ordered to the wife. 5° The granting or refusing a reference is dis- cretionary.5' If the reference is directed it should be to ascertain and report the value and income of the husband's property, what would be a reasonable sum to be allowed to the wife for counsel fee, support, and maintenance pending the action, 5^ taking into consideration the circumstances in life of the parties." On the hearing the referee should not go into the question whether the parties were married, proof of recognition by husband is sufficient to entitle to ali- mony,5'* and proof of the wife's misconduct is admissible only to show that it was so glaring that no aid should be given her to prosecute.^s While the husband's poverty is no answer to the application, his pecuniary ability and the 49. Code of Civ. Proc, § 1769 Van Vleck v. Van Vleck, 21 App. Div. 272; 47 N. Y. Supp. 470. 50. Code of Civ. Proc, § 1015 See Ward v. Ward, 21 N. Y. Supp 795- 51. Code of Civ. Proc, § 1015 Patterson v. Patterson, 4 App. Div. 146; 74 St. Repr. 502; 38 N. Y, Supp. 627. 52. Lawrence v. Lawrence, 3 Paige, 267; Gerard v. Gerard, 2 Barb. Ch. 73; Purcell v. Purcell, 3 Edw. Ch. 194. 53. Hallock v. Hallock, 4 How. 160; Cohen v. Cohen, 11 Misc. 704. 54. Herforth v. Herforth, 2 Abb. (N. S.) 483- 55. Fowler v. Fowler, 4 Abb. 411. 2l8 LAW AND PRACTICE AS TO REFERENCES. circumstances in life of the parties may be considered in fix- ing the amount of the allowance.^^ (B.) References as to alimony after decree of divorce. In case a decree of divorce or separation is awarded to the wife, the defendant may be required by the final judgment to pro- vide suitably for the education and maintenance of the chil- dren of the marriage, and for the support of plaintiff, as justice requires, having regard to the circumstances of the respective parties. '^ A reference may be ordered to ascer- tain and report upon any questions arising before the court upon settlement of the terms of the final judgment. ^^ The Court of Appeals have held that the General Term might order a reference when it was neglected by the court beiow.^' Upon the hearing before the referee, all matters that would be proper in a proceeding for alimony pendente lite may be shown, *° but the amount allowed may be larger.^' 56. Hallock v. Hallock, 4 How. 160; Frickel v. Frickel, 4 Misc. 382; 24 N. Y. Supp. 483; Cohen v. Cohen, 11 Misc. 704; 66 St. Repr. 336; 32 N. Y. Supp. 1082; I N. Y. Annot. Cas. 226; Delanoy v. De- lanoy, 19 App. Div. 295. 57. Code of Civ. Proc, § 1759. This section also provides, under the amendment of 1900 (ch. 742), that the court might at any time after final judgment, "whether heretofore or hereafter rendered," annul, vary, or modify such direc- tion. With reference to judgments rendered before the passage of the amendment, it has been held, that such judgment constitutes property belonging to the wife, which is pro- tected by the Constitution, and of which neither the legislature nor the courts can deprive her of. (Livingston v. Livingston, 74 App. Div. 261; 77 N. Y. Supp. [iii St. Repr.] 476.) 58. Forrest v. Forrest, 25 N. Y. 501; Daggett V. Daggett, 5 Paige, 509. See Ward v. Ward, 21 N. Y. Supp. 795. 59. Forrest v. Forrest, 25 N. Y. 501; affg. 21 N. Y. Super. 640. 60. Lawrence v. Lawrence, 3 Paige, 267; Burr v. Burr, 10 Paige, 20; affd., 7 Hill, 207; Forrest v. Forrest, 25 N. Y. 501; Galusha v. Galusha, 4 St. Repr. 399; 43 Hun, 181; 116 N. Y. 635; 27 St. Repr. 738; 138 N. Y. 272; Leslie v. Leslie, 6 Abb. (N. S.) 193; Hallock v. Hallock, 4 How. 160; Frickel v. Frickel, 4 Misc. 382; 24 N. Y. Supp. 483; Cohen v. Cohen, II Misc. 704; 66 St. Repr. 336; 32 N. Y. Supp. 1082; I N. Y. Annot. Cas. 226; Wells v. Wells, 10 St. Repr. 248. 61. Leslie v. Leslie, 6 Abb. (N. S.) 193; Simmons v. Simmons, 25 N. Y, Super. 712: Lawrence v, Lawrence, 3 Paige, 267. REFERENCES IN ACTIONS FOR SEPARATION. 219 (C.) In general. The form of the order of reference and proceediugs generally as in any interlocutory reference,^^ and the report and proceedings thereon follow in the same order/3 |n c^ge a judgment awards alimony with leave to change the amount from time to time according to the circumstances of the parties, a reference may be to inquire as to the conditions of the parties and to determine the amount.^"* A referee may also be appointed in proceedings as to the custody of children, but the same person can- not be appointed who has acted as such in an action for a divorce/5 The court may increase or diminish the amount of ahmony reported by a referee.^^ § 112. References in actions for separation. — Actions for separation may be referred in the same manner as those for divorce upon the ground of adultery,^^ and judgment is ren- dered in the same manner.^* There is no di^erence in the procedure — no reference can be had to a person agreed upon or nominated by one of the parties, nor without proof of the manner of service of the summons and complaint, which cannot be supplied by appearance and retainer.^^ It has been held that husband and wiie are competent witnesses against each other in actions of this character.'''' The right of the court to grant a separation between hus- band and wife is based entirely upon the statute, and unless the plaintifif brings himself within the statute by a fair pre- 62. Ante, § 72. 68. Code of Civ. Proc, § 1229; 63. Ante, § 74. Llewellyn v. Llewellyn, i Law Bull. 64. Middleberger v. Middle- 34. berger, 12 Daly, 195. 69. Supreme Court Rule 72. 65. Matter of Bliss, 39 Hun, 594. 70. P v. P , 24 How. 197; 66. Gallinger v. Gallinger, 4 Carey v. Carey, 4 Daly, 270. See Lans. 473; 61 Barb. 31. Code of Civ. Proc, § 831. 67. Code of Civ. Proc., § 1012. See ante, §§ 107, 108. 220 LAW AND PRACTICE AS TO REFERENCES. ponderance of testimony, a separation cannot be granted, however unpleasant the relations of the parties, or- however unhappy the life which comes to plaintiff therefrom.'' The fact that husband and wife cannot live in harmony is no ground for legal separation.''^ Mental suffering without bod- ily injury is insufficient ;73 nor are occasional salHes of pas- sion, '"* nor meanness, disagreeable conduct, or the use of vile language ;'5 b^t it may be, when accompanied with accusa- tions of marital misconduct and threats of personal injury and choking her;''* frequent intoxication is not enough,^' but may be a material element when accompanied by other facts.''* Yet acts and words may be construed as cruel and inhuman, though causing no physical pain.''' It may be enough if they inflict indignity and threaten pain.^° Groundless and malicious charges against the wife's chastity constitute cruel and inhuman treatment sufficient to justify a judgment of separation.*' But where the alleged cruel treatment was occasioned by the complainant's adultery, and they lived together for some months after, the action can- not be maintained.*'' In an action for separation upon the ground of cruel and inhuman treatment, defendant has the right to prove any facts in justification of alleged acts of vio- 71. de Meli v. de Meli, S Civ. T9. Atherton v. Atherton, 82 Proc. Rep. 306; 67 How. 20. Hun, 179; 31 N. Y. Supp. 977; Lutz 72. Davis v. Davis, i Hun, 444. v. Lutz, 31 St. Repr. 718. 73. Paisley v. Paisley, 2 Law 80. Whispell v. Whispell, 4 Barb. Bull. 6. 217. 74. Mason v. Mason, i Edw. 278. 81. Kennedy v. Kennedy, 73 N. 75. McBride v. McBride, 31 St. Y. 369; Strauss v. Strauss, 50 St. Repr. 631; 9 N. Y. Supp. 827. Repr. 845; 67 Hun, 491; 22 N. Y. 76. Murray v. Murray, 41 St. Supp. 567; Lutz v. Lutz, 31 St. Repr. 428. Repr. 718; de Meli v. de Meli, 120 77. Mason v. Mason, i Edw. 278. N. Y. 493; Whispell v. Whispell, 4 78. Kissam v. Kissam, 21 App. Barb. 217. Div. 142; 47 N. Y. Supp. 270. 82. Doe v. Roe, 23 Hun, 19. REFERENCES IN ACTIONS TO ANNUL A MARRIAGE. 221 lence toward plaintiff.*^ Where abandonment is alleged it must be accompanied by a refusal to support.^'* Proof as to residence must also be given upon the trial. ^^ The referee's report should be accompanied by the testi- mony signed by the witnesses. ^^ Judgment cannot be entered upon the report, even for a dismissal of the com- plaint, without application to the court. ^^ § 113. References in actions to annul a marriage An ac- tion brought to annul a marriage can be ordered only by con- sent of parties,^^ and then only to a referee selected by the court.®' References upon default are not permitted.'" A reference may be made to a person to whom all the parties object." The groun-ds for an action to annul a marriage are stated in the statute.'"" A marriage cannot be annulled on the confession of the defendant alone ;'3 nor where the 83. Rose V. Rose, 22 St. Repr. 526. 84. Ahrenfeldt v. Ahrenfeldt, i Hoffra. 47; Atwate-- v. Atwater, 53 Barb. 621; 36 How. 431; Ruckman V. Ruckman, 58 How. 278; Clear- man V. Clearman, 15 Civ. Proc. Rep. 313; 18 St. Repr. 272. To constitute abandonment there must be a final departure, and ■without sufficient reason therefor, and without the consent of the other party, with the intention not to return. (Uhlman v. Uhlman, 17 Abb. N. C. 236; Simon v. Simon, 6 App. Div. 469; 39 N. Y. Supp. 573; afifg. IS Misc. S15; i7 N. Y. Supp. 1 121; Dignan v. Dignan, 17 Misc. 268; 40 N. Y. Supp. 320; Williams v. Williams, 25 St. Repr. 183; 6 N. Y. Supp. 64s; 17 Civ. Proc, Rep. 297; afifd., 130 N. Y. 193; 41 St. Repr. 280. 85. Code of Civ. Proc, § 1763. 86. Supreme Court Rule 30. 87. Llewellyn v. Llewellyn, i Law Bull. 34. 88. Code of Civ. Proc, § 1012. In Morrell v. Morrell (17 Hun, 324) it was held, that where the marriage is sought to be annulled for incapacity caused by disease, a compulsory reference cannot be had; otherwise where the incapac- ity is congenital. 89. Supreme Court Rule 72, first paragraph. 90. Supreme Court Rule 72, last paragraph. 91. Code of Civ. Proc, § 1024. 92. Code of Civ. Proc, §§ 1742, 1743- 93. Code of Civ. Proc, § 1753; Steiner v. Steiner, 37 Misc. 26; 74 N. Y. 714; Montgomery v. Mont- gomery, 3 Barb. Ch. 132. 222 LAW AND PRACTICE AS TO REFERENCES. parties continue to live together after full knowledge of all the facts.''* If physical incapacity is alleged, it must be shown to have existed at the time of the marriage and to be incurable.95 Misrepresentations as to character are held sufficient to annul a marriage induced by fraud ;9^ so are fraudulent representations as to health.''' Where a motion is made for a surgical examination of the person of the defendant in an action for annulment on the ground of physical disability of the husband, a reference may be ordered, to conduct the examination.'^ The rules of the court heretofore referred to are applicabie to this class of cases." Judgment upon the report of the referee can be entered only on application to the court.'"" 94. Steiner v. Steiner, 37 Misc. 98. Cahn v. Cahn, 21 Misc. 506; 26; 74 N. Y. Supp. 714; Wendel v. 48 N. Y. Supp. 173. Wendel, 30 App. Div. 447; 52 N. Y. (The decision in this case was Supp. 72. not based upon any statutory pro- 95. Devanbaugh v. Devanbaugh, vision but upon the chancery prac- 5 Paige, 554. tice as it existed before the Code. 96. Keyes v. Keyes, 26 N. Y. Citing Devanbaugh v. Devanbaugh, Supp. 910; 6 Misc. 355; King v. 5 Paige, 554! Newell v. Newell, 9 Brewer, 8 Misc. 587; 31 Abb. N. C. Paige, 25.) 325. 99. See Supreme Court Rules 72- 97. Meyer v. Meyer, 49 How. 74, 76. 311; Anonymous, 21 Misc. 765; 49 100. Code of Civ. Proc, S 1229. N. Y. Supp. 331. REFERENCES OF CLAIMS AGAINST ESTATES. 223 CHAPTER V. REFERENCES OF CLAIMS AGAINST ESTATES OF DECEDENTS. Section 114. The statute. 115. The hearing and proceedings thereon. 116. The report and judgment. § 114. The statute — The authority for reference of dis- puted claims against the estates of deceaents was formerly- contained in the Revised Statutes.' In 1893 the provisions of the Revised Statutes were amended and incorporated in the Code of Civil Procedure.^ The executor or adminis- trator of an estate of a deceased person is required to ad- vertise for claims against the deceased to be exhibited to him, with the vouchers therefor at or before a day named in a notice to be published under an order of the surrogate. If the executor or administrator doubts the justice of any such claim, he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surro- gate. On filing such agreement and approval in the office of the clerk of the Supreme Court in the county in which the parties or either of them reside, an order shall be entered by the clerk referring the matter in controversy to the per- son or persons so selected. On the entry of such order the proceeding shall become an action in- the Supreme Court. The same proceeding s-hall be had in all respects, the ref- erees shall have the same powers, be entitled to the same compensation, and subject to the same control as if the ref- erence had been made in an action in which the court might, by law, direct a reference. In determining the question of 1. 2 R. S. 88, 89, §§ 34, 35. 36, 37, 2. Code of Civ. Proc, § 2718. 39; L. 1859, ch. 261; L. 1890, ch. 4S6. 224 LAW AND PRACTICE AS TO REFERENCES. costs, the referee shall be governed by sections 1835^ ^.nd 1836'* of this act. Judgment may be entered on the report of the referee, and such judgment shall be valid and effectual in all respects as if the same had been rendered in a suit 3. " Where a judgment for a sum of money only is rendered against an executor or administra- tor, in an action brought against him in his representative capacity, costs shall not be awarded against him, except as prescribed in the next section." (Code of Civ. Proc, § 1835.) The provision refers only to ac- tions commenced against executors, etc., and not to an action com- menced against a testator and re- vived and continued against his executors. (Benedict v. Caffe, lo N. Y. Super. 669; 12 N. Y. Leg. Obs. 262; Lennen v. Wood, 16 How. 28s; Tindal v. Jones, 11 Abb. 258; 19 How. 469.) And where the action is commenced against the intestate, and by order continued against his representatives, the plaintiflf, if he succeeds, is entitled to costs against the estate without special application therefor. (Mer- ritt V. Thompson, 27 N. Y. 285; Mitchell V. Mount, 17 Abb. 213.) It is only in actions against exec- utors or administrators, not in ac- tions 63; them, that any exemption from costs is provided (Fox v. Fox, 22 How. 4S3; Howe v. Lloyd, 2 Lans. 235; 9 Abb. [N. S.] 257); and with certain few exceptions, the provisions forbidding the re- covery of costs, against executors or administrators, apply only to the general costs in the action, and have no reference to interlocutory costs or costs of an appeal. Hunt v. Connor, 17 Abb. 466.) 4. Where it appears, in a case specified in the last section, that the plaintiflf's demand was pre- sented within the time limited by a notice, published as prescribed by law, requiring creditors to present their claims and that the payment thereof was unreasonably resisted or neglected, or that the defendant did not file the consent provided in section 1822, at least ten days be- fore the expiration of six months from the rejection thereof, the court may award costs against the executor or administrator, to be collected either out of his indi- vidual property or out of the prop- erty of the decedent as the court directs, having reference to the facts which appear upon the trial. Where the action is brought in the Supreme Court, the facts must be certified by the judge or referee before whom the trial took place." (Code of Civ. Proc, § 1836, as amended by L. 1897, ch. 469.)' Sections 1835 and 1836 do not have reference to actions against executors or administrators for equitable relief. Where such action is referred, costs are within the discretion of the referee; and the exercise of such discretion cannot be reviewed upon a motion at Special Term. (McBride v. Cham- berlain, 56 St. Repr. 433; 26 N. Y. Supp. 94.) A distinction between costs and disbursements seems to have been maintained ever since the passage of section 317 of the old Code, and REFERENCES OF CLAIMS AGAINST ESTATES. 225 commenced by the ordinary process, and the practice on appeal therefrom shall be the same as in other civil actions.^ The statute must be strictly complied with. The claim must be presented in writing.* There must be an agreement in writing to refer; it must be approved by the surrogate; the agreement and approval must be filed with the clerk and the order of reference must be entered.^ Both legal and the provisions of that section have never been repealed. Laws of 1893, chapter 686, amend- ing section 2718 of the Code, pro- vides that, on the entry of an order of reference of a claim against the estate of a decedent, the proceed- ing becomes an action in the Su- preme Court, and is governed, as to costs, by sections 1835 and 1836, and no reference is made to dis- bursements. Therefore, where a claim against a decedent's estate has been referred, disbursements may be allowed to the claimant, although no costs are given. (Out- house V. Odell, 84 Hun, 494; 32 N. Y. Supp. 388, citing Larkin v. Maxon, 103 N. Y. 680.) Code of Procedure (old Code), section 317, was expressly retained when such Code was repealed (L. 1880, ch. 24s, § 3, subd. 8), and is applicable to a reference for hear- ing on a claim against an estate; and an order of a referee deter- mining that the claimant is the pre- vailing party, and allowing his dis- bursements, cannot be set aside on motion by the Special Term, but can only be reviewed for error on an appeal. (Osborne v. Parker, 66 App. Div. 277; 72 N. Y. Supp. 894. See Niles v. Crocker, 88 Hun, 312; 34 N. Y. Supp. 761.) 15 The provision of the Code of Procedure especially applicable is as follows: " (2.) And whenever any claim against a deceased per- son shall be referred, pursuant to the provisions of the Revised Stat- utes (now section 2718, Code of Civil Procedure), the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law." (See Code of Procedure, § 317.) 5. Code of Civ. Proc, § 2718. Where two of the referees ap- pointed by stipulation of the par- ties to try the justice of a claim against a decedent's estate, as authorized by section 2718, de- cline to act, it is the duty of the court to fill the vacancies by the appointment of other referees, un- less the stipulation expressly pro- vides otherwise, as required by sec- tion loii; and it is error for the court to vacate the order of ref- erence. (Hustis V. Aldridge, 144 N. Y. S08; 39 N. E. Repr. 649.) 6. King V. Todd, 15 N. Y. Supp. 156; 21 Civ. Proc. Rep. 114; 27 Abb. N. C. 149; In re Morton's Estate, 28 N. Y. Supp. 82; 7 Misc. 343. 7. Bennett v. Gould, 27 Hun, 366; Bucklin v. Chapin, 35 How. 155; 53 Barb. 488; i Lans. 443; Wait v. Vandemark, 18 St. Repr. i. 226 LAW AND PRACTICE AS TO REFERENCES. equitable claims against the estate may be referred.* Un- less the agreement names the referee or authorizes the sur- rogate to do so, he has no authority to approve the agreement and neither the court or the referee can acquire jurisdiction. 5 The agreement to refer, being the commence- ment of the action, should state substantially the issue be- tween the parties, stating the claim upon one side, and the denial of its justice upon the other; it is a substitute for complaint and answer.'" In the absence of formal pleadings a demurrer is not possible. The defendant must await de- velopments and make his objections as the grounds for them appear." § 115. The hearing and proceedings thereon The hear- ing is brought on in the same manner as other references of issues.'^ The referee must be sworn,'^ and the usual stipulation as to fees, if required.'* It was formerly held that a proceeding by reference under the statute to deter- mine a disputed claim against the estate of a decedent was a special proceeding and that the provisions of the Code in regard to amendments did not apply to such proceedings ;'5 but since the amendment of 1893, declaring that upon the entry of the order of reference the proceeding shall become an action in the Supreme Court, and that upon such refer- ence the referee shall have the same powers as if the refer- ence had been made in an action in which a reference is authorized, the referee has full and complete power under 8. White V. Story, 28 How. 173. 13. Code of Civ. Proc, § 1016. 9- Tilney v. Clendenning, i Dem. 14. Ante, § 32. 212. 15- Mowell V. Van Buren, 77 10. Woodin v. Bagley, 13 Wend. Hun, 569; 28 N. Y. Supp. 1035; 60 453. St. Repr. 514; Eldred v. Eames, 11. Myers V. Cronk, 45 Hun, 404; 115 N. Y. 401; Von Hermani v. Covey V. Covey, 64 Hun, 540. Wagner, 81 Hun, 431. 12. Ante, §§ 29, 30. CLAIMS AGAINST ESTATES; THE HEARING, ETC. 22/ section 723 of the Code of Civil Procedure to- allow amend- ments."' Whether or not the referee shall require the plain- tifif to furnish a bill of particulars is a matter of discretion, and in the absence of an abuse of discretion is not review- able. '^ Public policy requires that claims against the es- tates of deceased persons shall be established by very satisfactory evidence.'^ The burden is not on a claimant to show that his claim has not been paid, where it has been presented to the executor, duly verified as required by sec- tion 2718, showing that no payment has been made thereon, 16. Lounsbury v. Sherwood, 53 App. Div. 318; 6s N. Y. Supp. 676. In Lee v. Lee (85 Hun, 588; 66 St. Repr. 820; 33 N. Y. Supp. 115; 2 N. Y. Annot. Cas. 52), decided in 189s, the court, upon motion for leave to amend or supplement a claim theretofore filed, held that prior to June, 1893, an amendment upon the hearing before a referee was not permissible; but the effect of the amendment of 1893 was to make the proceeding, from the time of the entry of the order of reference, an action in its entirety, bringing it directly within the pro- vision of section 723 of the Code of Civil Procedure, which gives the court power, at any stage of the action, to amend any pleading in furtherance of justice. 17. Matter of Weller, 4 Hun, 195- 18. Matter of Marcellus, 165 N. Y. 70; afJg. 25 App. Div. 621; 83 St. Repr. (49 N. Y. Supp.) 1140; Mat- ter of Van Slooten v. Wheeler, 55 St. Repr. 554; 140 N. Y. 624; revg. 50 St. Repr. 873; O'Neil v. Barry, 20 App. Div. 121; Hughes v. Daven- port, I App. Div. 182; 37 N. Y. Supp. 243; Wheeler v. Eastwood, 88 Hun, 160; 34 N. Y. Supp. 513; Matter of Humfreville, 6 App. Div. 535; 39 N. Y. Supp. 550; Steitz v. Priddis, 81 Hun, 229; 30 N. Y. Supp. 762; Ellis v. Filon, 85 Hun, 48s; 33 N. Y. Supp, 138; Dorman v. Gannon, 4 App. Div. 458; 38 N. Y. Supp. 659; Yates v. Root, 4 App. Div. 439; 38 N. Y. Supp. 663; Winne v. Hills, 91 Hun, 89; 36 N. Y. Supp. 683; Rowland v. Howard, 26 N. Y. Supp. 1018; 56 St. Repr. 722; Kearney v. McKean, 85 N. Y. 136; Matter of Arkenburgh, 58 App. Div. 583; 103 St. Repr, (69 N. Y. Supp.) 128. In Rix V. Hunt (16 App. Div. S4o; 78 St. Repr. [44 N. Y. Supp.] 988), the court said: "Where claims are presented against a de- ceased party, it is unquestionably well settled, by repeated adjudica- tions, that the same should be scrutinized with even more than ordinary care in order to prevent, as far as possible, the allowance of unjust and fictitious demands against parties whose mouths are sealed by death." 228 LAW AND PRACTICE AS TO REFERENCES. but the defense of payment must be affirmatively shown by the executor."' § ii6. The report and judgment. — The referee's report should contain findings of fact with the referee's conclusions thereon,'"' and judgment is to be entered upon the report without application to the court.^' The referee is also au- thorized to decide as to costs, and where he does so, his de- cision cannot be reviewed at Special Term." AppHcation for extra allowance of costs must be made to the court.'^^ Th^ allowance of costs is governed by section 1836, which regulates costs in actions.^'* Exceptions to the referee's re- port are made and filed as in other references of issues, ^^ and the report is reviewed only on appeal from 'the judgment.^* 19. Matter of Rowell, 45 App. determine the issues and decide the Div. 323; 61 N. Y. Supp. 382; claim in place of the court. The Hicks-Alixanian v. Walton, 14 App. court cannot review the decision of Div. 199; yy St. Repr. (43 N. Y,. the referee, consequently the court Supp.) 541. cannot confirm it." 20. Code of Civ. Proc, § 1022; 22. Jenkinson v. Harris, 27 Misc. ante, §§ 50, 51. 714; 93 St. Repr. (59 N. Y. Supp.) 21. Jenkinson v. Harris, 27 Misc. 548; Fisher v. Bennett, 21 Misc. 714; 93 St. Repr. (59 N. Y. Supp.) 178; 81 St. Repr. (47 N. Y. Supp.) 548. In this case the court said: 114; Lamphere v. Lamphere, 54 "An application to confirm is made App. Div. 17; 100 St. Repr. (66 N. unnecessary, and the former prac- Y. Supp.) 270; 8 N. Y. Annot. Cas. tice of applying to the court for 134. confirmation is no longer appli- 23. Ante, § 53; Fisher v. Ben- cable to those references which nett, 21 Misc. 714; 93 St. Repr. (59 have been rendered by the amend- N. Y. Supp.) 548. ment, the same in effect as the 24. Henning v. Miller, 83 Hun, ordinary references in actions, upon 403; 31 N. Y. Supp. 878. which judgments are rendered with- 25. Ante, § 58. out application to the court, be- 26. Ante, § 64. cause the referee is empowered to TITLE IV. REFERENCES IN SPECIAL PROCEEDINGS. Chapter I. References in Surrogates' Courts (§5 117-120). II. References in Supplementary Proceedings (§§ 121, 122). III. References for Examination of Garnishee in Attach- ment (§1 123-125). IV. References Under the General Assignment Law (§§ 126- 130). V. References of Controversies Under Insolvent Debtors Law (§§ 131, 132). VI. References in Proceedings to Discover Life Tenant (§§ 133-136). VII. References in Proceedings for Collection of Taxes (§§ 137, 138). VIII. References on Sale or Mortgage of Real Estate of In- fant, Lunatic, Idiot, or Habitual Drunkard (§§ 139- 141)- IX. References in Proceedings for Voluntary Dissolution of Corporations (§§ 142-145). X. Miscellaneous References (l§ 146-150). CHAPTER I. REFERENCES IN SURROQATES' COURTS. Section 117. The statute. 118. The referee and the proceedings. 119. The referee's report. 120. Reference for probate or revocation of probate of will in New York county. § 117. The Statute — Before the adoption of the Code of Civil Procedure, all questions and matters at issue before a surrogate, except the questions raised upon an accounting by executors and administrators, were required to be de- termined by him. Under the Code, however, special au- thority is given to the Surrogate's Court to order references, and the power of those courts for that purpose is similar to that of other courts of record.' 1. Code of Civ. Proc, § 2546, as amended by L. 1899, ch. 607. 229 230 LAW AND PRACTICE AS TO REFERENCES. In a special proceeding, other than one instituted for pro- bate or revocation of probate of a will, the surrogate may, in his discretion, appoint a referee to take and report to the surrogate the evidence upon the facts, or upon a specific question of fact; to examine an account rendered; to hear and determine all questions, arising upon the settlement of such an account, which the surrogate has power to deter- mine, and to make a report thereon; subject, however, to confirmation or modification by the surrogate."^ Such a referee has the same power and is entitled to the same compensation as a referee appointed by the Supreme Court, for the trial of an issue of fact in an action; and the provisions of this act, applicable to a refer- ence by the Supreme Court, apply to a reference, made as prescribed in this section, so far as they can be applied in substance without regard to the form of proceeding.^ The surrogate of the county of New York may, on the written consent of all the parties appearing in a probate case, ap- point a referee, or may, at his discretion, direct an assistant to take and report the testimony, but without authority to pass upon the issues involved therein.* Unless a referee's report is passed upon and confirmed, approved, modified, or rejected by a surrogate within ninety days after it has been submitted to him, it shall be deemed to have been confirmed as of course, and a decree to that effect may be entered by any party interested in the proceeding upon two days' notice.^ This provision of the statute authorizes the surrogate to direct the referee to report the evidence, with his opinion 2. Code of Civ. Proc, § 2546, 4- Code of Civ. Proc, I 2546, paragraph i. paragraph 3. 3. Code of Civ. Proc, § 2546, 5. Code of Civ. Proc, § 2546, paragraph 2. paragraph 4. REFERENCES IN SURROGATES COURTS; THE REFEREE. 23 1 thereon;* and an order appointing a referee to report the evidence, with his opinion, even if too broad, does not make the proceedings before the referee void, or prevent the surro- gate, on the coming in of the report, from proceeding on the testimony.'' He may modify the referee's report, and himself determine, on the evidence returned, any question submitted.* A surrogate has, on application to remove an executor, authority to order a reference, of his ow^n motion, to obtain needed information on questions of fact involved ;5 and he may also order a reference to determine- whether a claim has been rejected and barred by the Statute of Limi- tations, or was a vahd claim.'" In the county of New York the surrogate may order a reference for the examination of the accounting party, whenever it shall be made to appear necessary to enable the contesting party to interpose his objections." § 118. The referee and the proceedings. — The referee must possess the same qualifications as those appointed by other courts.'"^ But the clerk or other person employed in any capacity in a surrogate's office, shall not act as appraiser, as attorney or counsel, or as referee, or special guardian in any matter before the surrogate^'^ There is no provision in the Code or the rules of the court as to the method of bringing on the hearings in references in Surrogates' Courts. It has been held, however, that the General Rules of Practice apply to proceedings in Surrogates' 6. Matter of Ferrigan, 42 App. 10. Matter of Hoes, 54 App, Div. i; 58 N. Y. Supp. 920; affd., Div. 281. 160 N. Y. 689. 11- Rule VII, New York Surro- 7. Matter of Ferrigan, 42 App. gate's Court. Div. i; 58 N. Y. Supp. 920. 13. Ante, § 7. See also Supreme 8. Matter of Schaefer, 65 App. Court Rule 79. Div. 378; 73 N. Y. Supp. 57. 13. Code of Civ. Proc, § 2509, 9. Matter of Hale's Estate, 45 last sentence. App. Div. 578; 61 N. Y. Supp. 596. 232 LAW AND PRACTICE AS TO REFERENCES. Courts. '■• That being so, and the rules providing that "in cases where no provision is made by statute or by these rules, the proceedings shall be according to the customary practice as it formerly existed in the Court of Chancery," '^ it would seem that same notice would be required as in the case of a reference to a master under the old chancery prac- tice.'^ Under that practice, the master, on receiving the order or decree appointing him, assigned a time and place of hearing, and issued his summons to the party to be served to attend at the time and place designated."'' A better and a safer practice, however, would be to make the order of ref- erence provide for the manner of bringing on the hearing, viz. : by serving notice as in cases of reference of the issues in an action. In case of the reference of an account, a creditor or any person interested, although not cited, is entitled to appear on the hearing and thus make himself a party to the pro- ceeding,'* and whenever any person claims to be a creditor of an estate, and, as such, insists upon his right to become a party to a contest over the correctness of its executor's ac- counts, that right must be accorded to him as of course.'' Where an infant is cited to appear upon an accounting, the appointment of a special guardian is necessary, although he have a general guardian.^" The verified account and vouch- ers, as filed, are deemed prima facie evidence in favor of the accounting party,''' and it rests with the objecting party to establish more assets than are acknowledged by the ac- 14. Chatfield v. Hewlett, 2 Dem. 18. Code of Civ. Proc, § 2728; 191. 195- Greene v. Day, i Dem. 45. 15. Supreme Court Rule 84. 19- Greene v. Day, i Dem. 45, 51. 16. Chancery Rule 100. See note 20. Gunning v. Lockman, 3 Redf. under section 72, ante. 273. 17. See ante, § 72. 21. Bainbridge v. McCullough, r Hun, 488; 3 T. & C. 486. REFERENCES IN SURROGATES COURTS; PROCEDURE. 233 counts/^ In the county of New York, the contesting party is required to file specific objections to the account as filed, and the contest of such account shall be confined to the items or matter so objected to.^^ Upon an accounting an executor may prove any debt due to himself from the decedent, but not one due to himself and others. "^^ Books of account may be examined and their pro- duction compelled upon such an accounting.^^ xhe referee has the same power of amendment that the surrogate has, and may allow any amendment which does not include a transaction subsequent to the return day of the citation. ^^ A referee should not permit delays except for strictly legal cause. If the o'bjector does not at once proceed to sustain his objections, the reference should be closed and a prompt report to the court made of the exact facts, and thereupon 22. Marre v. Ginochio, 2 Bradf. voluntary one, or within such fur- 165; Matter of Mullon, 74 Hun, ther or other time in either case as 358; Matter of Ryalls, 74 Hun, shall be allowed by the surrogate; 205; Forbes v. Halsey, 26 N. Y. 60, and the contest of such account 61 ; Matter of Arkenburgh, 58 App. shall be confined to the items or Div. 583. matter so objected to. If it shall 23. Rule Vn, Surrogate's Court, appear to the satisfaction of the New York county, as follows: " On court, by affidavit or petition, that an accounting by an executor, ad- an examination of the accounting ministrator, guardian, or trustee, party will be necessary to enable which may be contested, any party the contesting party to interpose interested, or a creditor desiring his objections, such examination to contest the account, shall file may be ordere3 by the court for specific objections thereto in writ- that purpose." ing, and serve a copy thereof upon 24. Matter of Jones, I Power,, the accounting party, or upon his 99. attorney, in case he shall have ap- 25. Matter of Stouvenel, i Tuck. peared by attorney, and within 241. eight days after the filing of the 26. Matter of Gearns, 27 Misc. account in the office of the clerk 76; 58 N. Y. Supp. 200; Matter of of the court, where the accounting Fithian, 15 St. Repr. 734; Matter is a compulsory one, and within of Frank, i App. Div. 39; 36 N. Y. eight days after the return of the Supp. 972. citation, where the accounting is a 234 LAW AND PRACTICE AS TO REFERENCES. the objections may be stricken out for want of prosecution. If the objections are frivolous, the expense may be charged upon the contestants personally.^^ § 119. The referee's report. — The section of the Code un- der consideration provides, that a referee appointed under its provisions " has the same power, and is entitled to the same compensation, as a referee appointed by the Supreme Court, for the trial of an issue of fact in an action; and the provisions of this act (the Codfe), applicable to a reference by the Supreme Court, apply to a reference, made as pre- scribed in this section, so far as they can be applied in sub- stance, vnthout reg-ard to the form of the proceeding." ^^ The referee's report then should be made as prescribed by the section relating thereto.^' As to form it should follow that prescribed by the old chancery rules,^" and should be divided into two parts, the body and the schedules. 3' It should contain the title of the proceeding; it should be ad- dressed to the Surrogate's Court; it should refer to the order of reference, by its date; and may recite the substance of the directions contained in it.^^ It should also note the appear- ances of all parties. Tbe referee should state separately his findings of fact and his conclusions of law therein, ^3 and the schedules should contain the detailed particulars. 3* The testi- S7. Matter of Williams, 17 St. eral language it may trouble us Repr. 839. some day to determine. It seems 38. Code of Civ. Proc., § 2546. to open everything and settle Like many other legislative pro- nothing." visions, it may be a little difficult 29. Code of Civ. Proc., § 1022. to determine just what the above- 30. Chancery Rule 85. quoted provision of the statute may 31. 2 Barb. Ch. Pr. 548. mean. In Matter of Clark (119 32. 2 Barb. Ch. Pr. 548; Van N. Y. 427; 29 St. Repr. 682), Finch, Santv. Eq. Pr. 562. J., said: " How much or how little 33. Code of Civ. Proc, § 1022. is accomplished by this very gen- 34. 2 Barb. Ch. Pr. 548. REFERENCES IN SURROGATES' COURTS, ETC. 235 mony must be filed with the report, and the provisions of the General Rules of Practice apply.as The report must be filed within sixty days from the date of submission, or the refer- ence may be terminated by either party.^s* The referee is entitled to $io per day for each day spent in the business of the reference, except as otherwise agreed upon between the parties,3« and he is not bound to dehver his report until his fees are paid.^' but the surrogate has power, under the gen- eral control of the conduct of executors and administrators, to compel them to take up the referee's report and pay the fees.38 The New York Surrogate's Court Rules provide that a referee's report may be confirmed, as of course, unless ex- ceptions are taken within eight days; and in case exceptions are filed, either party may bring them on for hearing upon a notice of eight days.^' The referee's findings of fact will be 35. Supreme Court Rule 30. their reports, together with a veri- 35a. Matter of Santos, 31 Misc. fied memorandum of the time spent, 76; 64 N. Y. Supp. 572. so that their fees may be taxed by 36. Code of Civ. Proc, § 3296. the surrogate, and provision made 37. Matter of Foster, 3 Redf. in their final decree or order, en- 532. tered in the proceeding for pay- 38. Id. In Matter of Kraus (4 ment of such fees by such parties Dem. 217), it y/as held that the as may be found justly chargeable surrogate is powerless to direct the with such payment; or if any party referee to file his report in advance has paid the referee and it appears, of receiving his fees, and powerless on the termination of the proceed- to direct that any one of the par- ing, that he ought not, under the ties to the proceeding shall pay the circumstances, to be charged with referee before his report is filed; the expense of the reference, a di- and if the referee shall see fit to rection may be made for his reim- file his report without exacting his bursement, either out of the assets fees, provision can be made, in the of the estate, or by one of the par- final decree or order that may be ties against whom they are charge- thereafter made for the payment able. (Redf. Surr. Prac. [6th ed.], thereof by such parties to the pro- § 120.) Such would seem to be a ceeding as may be found justly safe practice in any county, chargeable therefor. 39. New York Surrogate's Court In New York county it is the Rule VIII, as follows: "When a usual practice for referees to file referee's report shall be filed, to- 236 LAW AND PRACTICE AS TO REFERENCES. regarded as the verdict of a jury, and, unless against the weight of evidence, so as to amount to a finding without evi- dence, it will be sustained,'*" and where no exceptions are filed, the surrogate has no alternative but to confirm the re- port/' The surrogate may send back the case for further report,"*"^ or he may modify the referee's report, and himself determine, upon the evidence submitted to the referee, any question presented on the accounting-t^ The confirmation of the referee's report is an approval of the rulings of the referee; he is not required to make new findings,** although it might be deemed the better course for him to make a full and complete decision, embodying all the findings of fact and conclusions of law, as ultimately determined by him, after he has passed upon the referee's report/^ § 120. Reference for probate or revocation of probate of will in New York county — In the county of New York a gether with the testimony taken The exceptions filed to a refer- before him, said report shall be ee's report must specifically point confirmed, as of course, unless ex- out the errors complained of. ceptions thereto shall be filed by (Ingrem v. Mackey, 5 Redf. 357.) any party interested in the account- If it becomes necessary to make ing or proceeding within eight a case, the referee and not the sur- days after a written notice of such rogate is the proper person to filing and a copy of such report settle it. (Matter of Niles, 14 St. shall have been served upon the Repr. 538.) opposing party; and in case ex- 42. Abercrombie v. Holder, 63 ceptions shall be so filed, any party N. Y. 628. may bring on the hearing of said 43. Matter of Schaefer, 65 App, exceptions on eight days' notice on Div. 378; 73 N. Y. Supp. 57. any stated motion day of said Sur- 44. Matter of Niles, 47 Hun, 34?; rogate's Court." Matter of Yetter, 44 App. Div. 404; 40. Estate of Odell, 18 St. Repr. affd., 162 N. Y. 615; Matter of 997; I Connoly, 94; Estate of Brad- Woodward, 69 App. Div. 286; 74 ley, 17 St. Repr. 836; Matter of N. Y. Supp. 705. Plumb, 24 Misc. 249; 53 N. Y. Supp. 45. Matter of Prout, 18 Civ. 558. Proc. Rep. 270; Matter of Keef, 43 41. Matter of LeiKngwell, 30 Hun, 98. Hun, 526. REFERENCES IN PROBATE PROCEEDINGS, ETC. 237 referee may be appointed on the written consent of all parties appearing in a probate case. The language of the statute in this particular could have been made plainer, as to the powers of the referee. The Code provides: " The surrogate of the county of New York may, on the written consent of all the parties appearing in a probate case, appoint a referee, or may, in his discretion, direct an assistant to take and report the testimony, but without authority to pass upon the is- sues involved therein." *^ It may be assumed that the last clause is applicable to the referee as well as to the assistant and that he is limited to the taking and reporting the testi- mony; and as the assistant has the authority to pass upon the admissibility of evidence, to which objection is inter- posed,'*' it may also be assumed that the referee appointed has similar power. 46. Code of Civ. Proc, § 2546. 47. Matter of Alleman, i Con- noly, 441. 238 LAW AND PRACTICE AS TO REFERENCES. CHAPTER II. REFERENCES IN SUPPLEMENTARY PROCEEDINGS. Section 121. Statutory provisions. 122. Proceedings before the referee. § 121. Statutory provisions — The Code of Civil Proced- ure, under the title " Proceedings supplementary to an execu- tion against property," provides for three distinct remedies, as a means for enforcing a judgment.' Each of these rem- edies is a special proceeding." But an order made in the course thereof can be reviewed only as follows: I. An order, made by a judge, out of court, may be va- cated, or modified by the judge who made it, as if it was made in an action; or it, or the order of the judge vacating or modifying it, may be vacated or modified, upon motion, by the court out of which the execution vras issued. 1. Code of Civ. Proc, § 2432, as der subdivision first or subdivision follows: second. The party to whom costs " This title provides for three are awarded in a special proceed- distinct remedies, as follows: ing shall be entitled to the same " I. An order made, or a warrant remedies under this title, under the issued against a judgment debtor, same circumstances, as near as after return of an execution. may be, as a judgment creditor. " 2. An order made, or a war- And for the purposes of this title, rant issued against a judgment the party to whom such costs are debtor, after the issuing and before awarded shall be deemed a judg- the return of an execution. ment creditor, and the party against " 3. An order, made after the whom they are awarded shall be issuing, and either before or after deemed a judgment debtor." As the return, of an execution, against amended by L. 1896, ch. 176. the person who has property of the 2. Code of Civ. Proc, § 2433; judgment debtor, or is indebted to Jones v. Sherman, 11 Civ. Proc. him." Rep. 416; 18 Abb. N. C. 461; Hyatt The proceedings under subdivi- v. Dusenberry, 12 Civ. Proc. Rep. sion third of this section may be 152; 5 St. Repr. 846; Smith v. pursued either alone or simul- Tozer, 42 Hun, 22; 11 Civ. Proc. taneously with the proceedings un- Rep. 343; 3 St. Repr. 363. REFERENCES IN SUPPLEMENTARY PROCEEDINGS. 239 2. Where the execution was issued out of a County Court, an appeal from an order, made in the course of the proceed- ings, may be taken in like manner as if the order was made in an action brought in the same court. ^ An order for the examination of a third person affects a substantial right, and is appealable under subdivision second.'* Either of the special proceedings may be instituted (i) before a judge of any court out of which the execution was issued, (2) before any county judge, special county judge, or special surrogate of the county to which the execution is issued, (3) in the city and county of New York, from a court other than the City Court of that city, before a justice of the Su- preme Court for that city and county, and (4) where the exe- cution is issued out of a court other than the Supreme Court, and each of the judges, before whom the special proceeding might be issued, is absent from the county, or for any reason unable or disqualified to act, then the proceeding may be in- stituted before any justice of the Supreme Court.' The order is based upon an affidavit or other competent written evi- dence, and should require the debtc«- under the judgment or order to appear and be examined concerning his property, at a time and place specified in the order.^ The order must re- quire him to attend for examination either before the judge to whom the order is returnable, or before a referee desig- nated therein. Where the examination is before a referee, he must certify, to the judge to whom the order is return- able, all the evidence and the other proceedings taken be- fore him.' At any stage of the proceedings, the judge to 3. Code of Civ. Proc, § 2433. 5. Code of Civ. Proc, § 2434; 4. Schenck V. Irwin, 60 Hun, 361; Baldwin v. Perry, 25 Hun, 72; i 38 St. Repr. 603; 15 N. Y. Supp. Civ. Proc. Rep. 118; 61 How. 289. 55; 21 Civ. Proc. Rep. 96. 6. Code of Civ. Proc., § 2435. 7. Code of Civ. Proc, § 2442. 240 LAW AND PRACTICE AS TO REFERENCES. whom the order is returnable may, in his discretion, make an order directing that any other examination or testimony be taken by, or that a question arising be referred to, a referee, designated in the order. Where a question is so referred, the referee may be directed to report either the evidence or the facts.* Either party may be examined, and each answer must be under oath. The referee may adjourn the proceed- ings, from time to time, as he may think proper,' even though the debtor may object.'^ § 122. Proceedings before the referee. — Before proceeding with the reference, the referee must subscribe and take an oath, that he will faithfully and fairly discharge his duty upon the reference, and make a just and true report, according to the best of his understanding. The oath may be expressly waived by the parties, but when taken must be returned to the judge with the report or testimony.'" These proceed- ings are similar to proceedings in interlocutory references, and if the order of reference does not fix the time and place of hearing, but merely directs the debtor to appear before the referee at such tim-es and places as he may appoint, the referee may issue his summons for the debtor to appear be- fore him, and the debtor will be guilty of contempt if he fails to obey." If a subpoena is required in these proceedings, it should be issued under the hand of the referee.'^ Where the referee is appointed to take and report the testimony he 8. Code of Civ. Proc, § 2443. 9a. Kaufman v. Thrasher, 10 9. Code of Civ. Proc, § 2444. Hun, 438. The referee has power to order an 10. Code of Civ. Proc., § 2445. adjournment to a place other than 11- Redmond v. Goldsmith, 2 that specified in the order directing Law Bull. 19. the examination. (Weaver v. 12. Code of Civ. Proc, § 854; Brydges, 85 Hun, 503; 33 N. Y. People ex rel. Jacobs v. Ball, 37 Supp. 132.) Hun, 24s; Knowles v. De Lazarre, 3 How. (N. S.) 35- REFERENCES IN SUPPLEMENTARY PROCEEDINGS. 24I must take all that is offered; he has no authority to pass upon objections made.'^ If the referee should not be present at the time and place appointed, the debtor is bound to wait a reasonable time for his appearance.''' If the debtor fail to appear before the referee, as directed by the order, the referee must report such fact to the judge, and proceedings may thereupon be instituted to punish the debtor for contempt.'^ The provisions of the statute are intended to give author- ity for a full and searching examination of the debtor con- cerning the amount and condition of his property, as vi^ell as any disposition he has made or attempted to make of it,'^ and for that purpose a judgment creditor is entitled to ex- amine his debtor, as fully as may be, once;''' and the extent of the inquiry is in great measure left to the good sense of the officer who conducts it.'* The proceedings are in the nature of a cross-examination by the creditor, and leading questions may be asked,'^ but he is not entitled to cross-ex- amination as to evidence already given, although he may have the advice and instruction of counsel in framing his answers.^" The referee may limit and restrict the right of counsel at all times and keep them within proper bounds.^' 13. Fox V. Moyer, 54 N. Y. 125. his successor. (Holstein v. Rice, 14. Reynolds v. McElhone, 20 15 Abb. 307; 24 How. 135.) How. Pr. 454. 16. Forbes v. Willard, 37 How. 15. Code of Civ. Proc, § 2457. 193; 54 Barb. 520. The judge who made the order 17. Canavan v. McAndrew, 26 has full power, out of court, to Hun, 46. punish for contempt. (Matter of 18. Le Roy v. Halsey, 8 N. Y. Smethurst, 2 Sandf. 724; 4 How. Super. 589; i Code Rep. (N. S.) 369; 3 Code Rep. 55; Shepherd v. 275; ii N. Y. Leg. Obs. 252. Dean, 13 How. 173; 3 Abb. 424; 19. Corning v. Tooker, 5 How. Lathrop v. Clapp, 40 N. Y. 328; 16; Le Roy v. Halsey, 8 N. Y. affg. 23 How. 423; Aldrich v. Davis, Super. 589. 46 St. Repr. 587; 19 N. Y. Supp. 20. Corning v. Tooker, s How. 765.) If the term of office of the 16. judge expires, the proceedings for 21. Schwab v. Cohen, 13 St. contempt may be brought before Repr. 709. 16 242 LAW AND PRACTICE AS TO REFERENCES. A person not a party cannot appear by counsel/^ He may be allowed to explain his evidence in the form of a supple- mental statement, but his former evidence must not be changed except by such supplemental statement.^^ The creditor must use reasonable diligence in the examina- tion; he cannot adjourn indefinitely.-^* Application for ad- journment should always be made to the referee and not to the court or judge. ^^ Nq person can be excused from an- swering proper questions, although it might tend to convict him of a fraud, but his answers cannot be used against him in a criminal action or criminal proceeding.^^ This provision means that the examination shall not be used as evidence of any fact testified to therein. "^^ At the close of the examina- tion the testimony must be signed by the witnesses and re- turned by the referee with his report,^^ but a witness will not be required to sign his deposition, when his doing so might subject him to legal liability not otherwise existing."^' 22. Sanford v. Carr, 2 Abb. 462. 27. Barber v. People, 17 Hun, 23. Corning v. Tooker, 5 How. 366; Loomis v. People, 19 Hun^ 16. 601; Dusenbury v. Dusenbury, 63 24. Hudson v. Plets, 11 Paige, How. 349. 180. 28. Supreme Court Rule 30. 25. Mason v. Lee, 23 How. 466; 29. Marx v. Spaulding, 6 St. Allen V. Starring, 26 How. 57. Repr. 530. 26. Code of Civ. Proc, § 2460. REFERENCES IN ATTACHMENT CASES. 243 CHAPTER III. REFERENCES FOR EXAMINATION OF GARNISHEE IN ATTACHMENT. Section 123. The statute; its effect. 124. The order of reference; how and when granted. 125. The examination. § 133. The Statute ; its effect — Upon the application of a sheriff, holding a warrant of attachment, all persons or cor- porations holding property of the defendant must furnish to the sheriff a certificate showing the property so held.' If a person, to whom application is made, as prescribed in the last section, refuses to give such a certificate; or if it is made to appear, by affidavit, to the satisfaction of the court, or a judge thereof, or the county judge of the county to which the warrant is issued, that there is reason to suspect that a certificate given by him is untrue, or that it fails fully to set forth the facts required to be shown thereby; the court or judge may make an order, directing him to attend, at a speci- fied time and at a place within the county to which the war- rant is issued, and subject to an examination under oath, con- cerning the same. The order may, in the discretion of the court or judge, direct an appearance before a referee named therein.^ It was formerly held that if a certificate was given, how- ever defective or inadequate, it prevented the examination ;3 but under the present statute neither an attachment creditor nor the sheriff is bound to accept the certificate of one al- leged to be indebted to or to have property of defendant, 1- Code of Civ. Proc, § 650. Reynolds v. Fisher, 48 Barb. 146; 2. Code of Civ. Proc, § 651. Hoagland v. Stodolla, I Code Rep. 3. Carroll v. Finley, 26 Barb. 61; (N. S.) 210. 244 LAW AND PRACTICE AS TO REFERENCES. where it is not fully responsive, and unless the court can see that there is at least a fair bona Ude compliance with the de- mand made for the certificate, plaintiff has a rig-ht to the ex- amination.* A debtor of an attachment defendant cannot terminate the proceeding merely by denying that he is in- debted to the defendant.5 On the other hand no examina- tion can be had where the affidavit on which the application is based is on information and belief and is met by the posi- tive affidavit of the person who gave the certificate.* § 124. The order of reference; how and when granted The order of reference is based upon an affidavit setting forth the facts showing the service of the warrant of attachment, or that he has disclosed to the third party whose examina- tion is sought, the fact that he has an attachment,^ the de- mand for the certificate,* the refusal to give a certificate or that an insufficient one is given,' and the fact that the party sought to be examined is indebted to or holds property of the defendant.'" The clerk of the court, with whom money is deposited, may be examined," but a receiver holding prop- erty in his capacity as receiver cannot." The moving papers must show very strong reasons for the examination. The 4. Seligman v. Falk, 13 Civ. Proc. 6- Ives v. Lockwood, 65 How. Rep. 77; 8 St. Repr. 443; Wester- 518. velt V. Marino, 27 App. Div. 267; 7. Schieb v. Baldwin, 22 How. SO N. Y. Supp. 632; Matter of 278; 13 Abb. Pr. 469. Crary, 9 Civ. Proc. Rep. 168, 173; 8. Code of Civ. Proc, I 650. Glen Cove Mfg. Co. v. Gotthold, 1 9. Code of Civ. Proc, § 651; Law Bull. 42; I Civ. Proc. Rep. Stine v. Greene, 65 App. Div. 221; 366, n. ; Baxter V. Mo., Kan. & Tex. 72 N. Y. Supp. 729. R. R. Co., 4 Hun, 630; 67 Barb. 10. Hong Kong & Shanghai 283. Banking Co. v. Campbell, 35 St. 5. American Distributing Co. v. Repr. 637; 13 N. Y. Supp. 122. Distilling & Cattle Feeding Co., 24 H- Dunlop v. Patterson Fire Civ. Proc. Rep. 245; 33 N. Y. Supp. Ins. Co., 74 N. Y. 145. 546. 12. Lehman v. Williams, i Law Bull. 58. REFERENCES IN ATTACHMENT CASES, ETC. 245 proceeding is collateral and despotic, as the person whose examination is sought is to be interrogated in a proceeding in which he is neither plaintiff nor defendant, and yet his examination may be used against him.'^ Where the attach- ment and certificates served upon the defendant, and the sheriiif's certificate of such service which were filed with the clerk, are referred to in the affidavit made upon the applica- tion for the order of reference, and the affiant states that he desires to base his application for the order on such papers, they may properly be considered as part of the moving papers on which the order of reference is granted.'* An or- der of reference may be granted after judgment. '^ The at- tachment creditor is entitled to an examination and is not bound to take the statement of the debtor as to the manner in which he holds the debt.'* § 125. The examination. — The order must state the time and place of examination.'^ The referee must be sworn.'* The statute does not authorize the referee to enter into an inquiry as to the afifairs of the witness which are wholly un- connected with the property of the defendant;" it must neces- sarily be limited to the property within the jurisdiction and subject to the attachmenf" The debtor cannot put an end to the examination by denying that he is indebted to the de-, 13. Hong Kong & Shanghai 137; 91 St. Repr. (57 N. Y. Supp.) Banking Co. v. Campbell, 35 St. 614; 29 Civ. Proc. Rep. 277. Repr. 637; 13 N. Y. Supp. 122. 20. Stine v. Greene, 65 App. Div. 14. Matter of Crary, 9 Civ. Proc. 221; 72 N. Y. Supp. 729; Seligman Rep. 168. V. Falk. 13 Civ. Proc. Rep. 77; 15. Smoot V. Heim, i Civ. Proc. 8 St. Repr. 443. The consideration Rep. 208. for an assignment under which the 16. Baxter v. Mo., Kan. & Tex. property is held may be inquired R. R. Co., 4 Hun, 630; (fj Barb. 283. into. (Glen Cove Starch Mfg. Co. 17. Code of Civ. Proc, § 651. v. Gotthold, i Civ. Proc. Rep. 366, 18. Code of Civ. Proc, § 1018. n. ; i Law Bull. 42. See also Ess v. 19. Guinan v. Allan, 40 App. Div. Toplanyi, 4 Civ. Proc. Rep. 173.) 246 LAW AND PRACTICE AS TO REFERENCES. fendant."" If he refuses to answer on the ground that papers in his possession show that the goods do not belong to the defendant he must produce the papers, and may be punished for contempt if he refuses.^^ The sherifif is entitled to have the party answer all pertinent questions bearing upon the question as to whether he has property of the defendant or owes the alleged debt.^' xhe referee may issue a subpoena requiring the attendance of the witness with books and papers/"* Subpoenas should be issued, in such cases, under the hand of the referee before whom the witness is to testify, and are not required to be tested by the judge or county clerk, as though issued in a pending action. ""^ The referee should require the witness to sign the testimony and should make his report forthwith, attaching thereto all the evidence and proceedings before him. For refusing to answer any pertinent question, the witness may be punished for con- tempt.^* 21. American Distributing Co. V. ment of the judgment; he must Distilling & Cattle Feeding Co., 24 state facts upon such points as are Civ. Proc. Rep. 245; 33 N. Y. Supp. necessary to be known by the 546; Rutter V. Boyd, 3 Abb. N. C. 6. sherifif, to enable him to take such 22. Rutter v. Boyd, 3 Abb. N. C. action as the law requires under 6; Guinan v. Allan, 40 App. Div. the attachment.'' (Rumsey's Pr., 137; 57 N. Y. Supp. 614. Vol. I [2d ed.], 659.) 23. Matter of Crary, 9 Civ. Proc. 24. Guinan v. Allan, 40 App. Div. Rep. 168, 173. 137; 91 St. Repr. (57 N. Y. Supp.) " He can be required to answer 514; 29 Civ. Proc. Rep. 277. any question, which can in any 25. People ex rel. Jacobs v. Ball, manner bear upon the question as 37 Hun, 245. to whether the judgment debtor has 26. Matter of Crary, 9 Civ. Proc. property or rights in action, which Rep. 168. ought to be subjected to the pay- REFERENCES UNDER THE ASSIGNMENT LAW. 247 CHAPTER IV. REFERENCES UNDER THE GENERAL ASSIGNMENT LAW.* Section 126. Introductory. 127. References for examination of witnesses, books, and papers, in aid of the assignment. 128. References to try and determine disputed claims. 129. References to take and state the account of the assignee. 130. Referee's fees. § 126. Introductory — Various references are provided un- der the " General Assignment Law " of 1877.' These may- be briefly stated as: (i) References for the examination of witnesses, books, and papers in aid of the assignment.'' (2) References to try and determine disputed claims. ^ (3) Ref- erences to take and state the account of the assignee.'* § 127. References for examination of witnesses, books, and papers, in aid of the assignment — The statute provides that the county judge may, at any time, on petition of any party interested, order the examination of witnesses and the pro- duction of any books and papers by any party or witness before him or before a referee appointed by him for such purpose, and the evidence so taken, together with books and papers, or extracts therefrom, as the case may be, shall be filed in the county clerk's office, and may be used in evi- dence by any creditor or assignee in any action or proceeding then pending, or which may hereafter be instituted. No witness or party, as above provided, shall be excused from 1. L. 1877, ch. 466. 3. L. 1877, ch. 466, § 26. 2. L. 1877, ch. 466, § 21. 4. L. 1877, ch. 466, i 20. * For complete works under the General Assignment Law, see " Headley on Assignments," and " Fiero on Special Proceedings," Vol. 2, pp. 1313-1444. 248 LAW AND PRACTICE AS TO REFERENCES. answering on the ground that his answer may criminate him, but such answer shall not be used against him in any criminal action or proceeding.^ Under this provision of the statute an assignor who re- fuses to deliver title deeds and give other necessary infor- mation to enable the assignee to carry out his trust may be ordered to appear for examination, upon the application of the assignee,^ and demand and refusal are not necessary before petition may be made and the order granted for the examination.' It is the duty of the judge to determine the good faith of the application,* and the fact that the exam- ination may tend to develop facts showing fraudulent trans- actions or fraudulent disposition of assets is no ground for refusing an order, or for vacating an order if granted.' The petition must be verified;" the granting of the order rests with the discretion of the judge to whom the application is made," and applications for an examination should be granted only in those cases where benefit will probably re- sult to the assigned estate or those interested therein.'* When an order is made directing an examination before a referee, the examination only is committed to the referee, and the evidence so obtained is to be filed in the county clerk's office for use in actions and other proceedings. There is no authority vested in a judge to require the referee's 5. L. 1877, ch. 466, § 21. 11. Matter of Sweezey, 10 Daly, 6. Matter of Strauss, i Abb. N. 107; Matter of Holbrook, 99 N. Y. C. 402. 539- 7. Matter of Bryce, lO Daly, 18. 12. Matter of Everit, 10 Daly, 8. Matter of Holbrook, 99 N. Y. 99; Matter of Sweezey, 10 Daly, 539. 107; Matter of Holbrook, 99 N. Y. 9. Matter of Wilkinson, 21 Week. 339; Matter of Brown, 10 Daly, Dig. 265; Matter of Kapelovich, 22 115; Matter of Goldsmith, 10 Daly, Week. Dig. 13. 112. 10. Matter of Brown, 10 Daly, 99. DETERMINATION OF DISPUTED CLAIMS. 249 Opinion. The judge must himself, in his order, name the witnesses to be examined, and cannot delegate that author- ity to the referee or any other person. The referee in this proceeding has no power or authority to compel the produc- tion of books and papers. '^ § 128. References to try and determine disputed claims Where a claim presented to the assignee is disputed, the stat- ute provides that: "The court, in its discretion, may order a trial by jury or before a referee, of any disputed claim or matter arising under the provisions of this act, or the acts hereby amended. It may, in its discretion, award reasonable counsel fees and costs, determine which party shall pay the same, and make all necessary rules to govern the practice under this act." "* The order of reference should provide the time, place, and manner of bringing the matter referred to a hearing, and the trial thereof should proceed in the same manner as the trial of issues in an action. The referee should be sworn unless the oath is waived. ''** The testimony should be signed by the witnesses and filed with the referee's report.'^ Upon filing of the referee's report, motion should be made for con- firmation.'^ Upon such motion all questions as to costs and fees will be disposed of by the court. '^ Where a reference of a disputed claim or other matter is ordered by the court, the proceedings before the referee is a trial of the issues involved in the dispute, and an order of reference " to hear and de- termine " is proper.'^ The costs allowed to the successful 13. Matter of Holbrook, 99 N. Special Term Rule VI (N. Y. city), Y. 539. subd. 28. 14. L. 1877, ch. 466, § 26. 16. Matter of Scheu, 10 Daly, 11. 14a. Code of Civ. Proc, § 1016; See Matter of Fairchild, 10 Daly, Matter of Vilmar, 10 Daly, 15. 74; Matter of Risley, 10 Daly, 44. 15. Supreme Court Rule 30; 17. Matter of Fairchild, 10 Daly, 74. 250 LAW AND PRACTICE AS TO REFERENCES. party cannot exceed the rates prescribed by the Code in a civil action.'^ Such costs may include costs before and after notice of trial, trial fee, and an extra allowance of 5 per cent., besides disbursements,"' which may include the referee's fees.^° Where a claim is materially reduced upon a trial be- fore a referee, the assignee is entitled to recover costs from the claimant. "^^ Where the referee has made his determina- tion, it can be reviewed only on appeal from the judgment OF decree.^^ § 129. References to take and state the account of the as- signee. — On a proceeding for an accounting under the As- signment Law, the County Court may take and state such account, or may appoint a referee to take and state it; and such referee shall have the powers enumerated in subdivision I of this section. ""3 Outside of New York city it is the more general practice for the court to take and state the account, but in that city the practice is to send the matter to a ref- eree. ^^^ 18. Matter of Fairchild, 10 Daly, court shall, on application of either 74. party, confirm said report, and the 19. Matter of Risley, 10 Daly, decision of the referee shall be re- 44; Matter of Fairchild, 10 Daly, 74. viewed only by appeal from the 20. Matter of Fairchild, 10 Daly, order confirming the report to the 74. Appellate Division." 21. People ex rel. Olin v. Lock- 23. L. 1877, ch. 466, § 20, subd. 3. wood, 9 Daly, 68. Subdivision i, referred to, gives the 22. Matter of Fiegelstock, 5 Law referee power " To examine the Bull. 71; Matter of Fairchild, 10 parties and witnesses on oath in Daly, 74. relation to the assignment and ac- Special Term Rule VI (New counting and all matters connected York city), subdivision 31, pro- therewith, and to compel their at- vides; "The decision of the ref- tendance for that purpose and their eree after the trial of a disputed answers to questions and the pro- claim, under section 26 of the duction of books and papers." General Assignment Act, shall be 23a. Special Term Rule VI (N. filed with the clerk and a copy Y. city), subd. 23. served on the defeated party. The assignee's accounting; referee's fees. 251 Where a referee is appointed to take and state the accounts of the assignee, in an action brought by a creditor, other creditors may be brought in as parties, as they become par- ties to the proceeding by presenting claims.^"* The referee must be sworn unless the oath is waived. ^^ The General Rules of Practice, requiring that the testimony of witnesses shall be signed by them, are held not to apply to a reference of this kind;^* but they do apply as to the filing of the ref- eree's report, notice of filing, exceptions, and confirmation of such report.^' The order of reference should provide for the time, place, and manner of bringing the matter to a hear- ing. The referee's report should show that the notices re- quired by law were mailed; that the necessary citations were served, and what creditors appeared. ^^ If the referee does not file his report within sixty days the reference may be terminated by serving notice of such election upon an ad- verse party.^' § 130. Referee's fees — Referees in proceedings under the " General Assignment Law " are entitled to the usual fees of 24. Ckeever v. Brown, 128 N. Y. 29. Douglas v. Smith, 65 Hun, 670; 40 St. Repr. 610; revg. 36 St. 11. In this court it appears that Repr. 131; 12 N. Y. Supp. 607. See, before notice was served, the ref- however, Douglas v. Smith, 50 St. eree had delivered his report to the Repr. 808; 21 N. Y. Supp. 813. counsel for the opposing party 25. Code of Civ. Proc, § 1016; "on the assurance that the same Matter of Vilmar, 10 Daly, 15. should not be filed until the ref- 26. Matter of Harris, 3 N. Y. eree's fees were paid," and it was Supp. 621; Special Term Rule VI held that a qualified delivery of the (N. Y. city), subd. 28, provides: report was not enough; that the " The testimony taken shall be assignee had the right to end the signed by the several witnesses, reference and that the referee had and attached to and filed with a re- lost his fees. The court expressed port of the referee." a doubt as to its power to adjudge 27. Matter of Scheu, 10 Daly, II. that a party, other than the one 28. Matter of Phillips, 10 Daly, succeeding upon a reference, 47; Matter of Schaller, 10 Daly, $7- should be compelled to pay the ref- eree's fees and take up the report. 252 LAW AND PRACTICE AS TO REFERENCES. $io per day.3° If the referee's fees are objected to, they must be taxed.^' No stipulation which may have been made in regard thereto is binding upon the court.^^ The court, at Special Term, may make an order directing the assignee to pay the fees of the referee out of the funds of the assigned estate, and if he has neglected to retain sufBcient of such funds he may be compelled to pay them personally.^^ 30. Code of Civ. froc, § 3296; Matter of Schaller, 10 Daly, 57. In this case, Van Hoesen, J., said; "Though the statute does not prescribe the fees payable to a referee in an assignment proceed- ing, there has been a general un- derstanding that the same rate of fees shall be allowed as in an ordi- nary action. In these assignment matters, one thing must be borne in mind — that the duties of a ref- eree do not consist merely in pre- siding at the examination of wit- nesses. The most arduous and vexatious of his duties is the audit- ing and examination of the ac- counts and vouchers in these cases in which there is a serious contest over the allowance of disputed claims. For these services, though they are not performed under the eye of the attorneys, the referee is to be paid; and in taxing his fees, the clerk is bound to ascertain, by the affidavit of the referee, and such other testimony as may be offered, how much time and how much labor the referee has devoted to the particular case. Time neces- sarily spent in auditing and ex- amining accounts is ' time spent on the business of the reference.' If an extortionate bill is presented, the court can always protect the estate." 31. Matter of Marklin, 10 Daly, 123. 32. Matter of Currier, 8 Daly, 119. 33. ^tna Nat. Bank v. Shotwell, 37 St. Repr. 253; 13 N. Y. Supp. 82& REFERENCES UNDER INSOLVENT DEBTORS LAW. 253 CHAPTER V. REFERENCES OF CONTROVERSIES UNDER INSOLVENT DEBT- ORS' LAW. Section 131. When reference may be ordered. 132. Powers and duties of referees. § 131. When reference may be ordered. — By an amend- ment to the Revised Statutes in April, 1862/ it was pro- vided: " If any controversy shall arise between the trustees (of insolvent debtors) and any other person in the settle- ment of any demands against such debtor, or of debts due his estate, the same may be referred to one or more indif- ferent persons, who may be agreed upon by the trustee and the party with whom such controversy shall exist, by a writ- ing to that efifect signed by them.^ If such referee or ref- erees be not selected by agreement, then the trustees, or the other party to the controversy, may serve a notice of their intention to apply to the officer who appointed said trustees, or to any judge of the Supreme Court at chambers, residing in the same district with the said trustees, for the appoint- ment of one or more referees, specifying the time and place when such application will be made, which notice shall be served at least ten days before the time so therein specified.^ On the day so specified, upon due proof of the service of such notice, the officer before whom the application is made shall proceed to select one or more referees, the same in all re- spects as they are now selected according to the rules and practice of the Supreme Court. ■* The officer before whom they shall be selected shall certify such selection in writing. 1. L. 1862, ch. 373; R. S., pt. 2, 2. Id., § 19. ch. V, tit. I, art. VIII. See Hey- 3. Id., § 20. decker's Gen. Laws, Vol. 4, p. 4916. 4. Id., § 21. 254 LAW AND PRACTICE AS TO REFERENCES. Such certificate, or the written agreement of the parties, shall be filed by the trustees in the office of a clerk of the Supreme Court, when the trustees were appointed under the first article of this title; and in the said office or in that of the clerk of the Court of Common Pleas of the county, when the trustees were appointed under any other article of this title; and a rule shall thereupon be entered by such clerk in vacation or in term, appointing the persons so selected to determine the controversy.' The court has power to order a compulsory reference of any controversy between the receiver of an insolvent cor- poration and a debtor in respect to the debt. The jurisdic- tion of the court to make the order does not depend upon the nature of the defense to the claim, and such a reference is proper, although fraud is alleged. The fact that the receiver has commenced an action at law upon the matters in con- troversy does not prevent him from afterward applying for the reference.* Such a reference violates no constitutional right of the defendant.^ 5. Id., § 23. ' That trial by jury, in all cases in 6. Matter of Crosby v. Day, 16 which it has heretofore been used Hun, 291; affd., 81 N. Y. 242. in the colony of New York, shall 7. Id. The constitutionality of be established and remain inviolate the provisions of this act was tested forever.' The corporation repre- and settled in Sands v. Kimbark sented by the plaintiff as receiver (27 N. Y. 147). In that case the was insolvent, and the defendant's court, per Marvin, J., said: "The testator was a member of such cor- defendants claim that they were poration. In equity, the stock and entitled to a trial by jury, and that other property of a private cor- the order of reference and the trial poration are deemed a trust fund were in conflict with the Constitu- for the payment of its debts, and tion, in which it has been declared the creditors have a lien upon it, or that ' the trial by jury, in all cases a right of priority of payment, in in which it has been heretofore preference to its stockholders; and used, shall remain inviolate for- courts of equity, prior to our Con- ever.' The Constitution of 1777 stitution, entertained jurisdiction in contained the like provision, thus: such cases and enforced the trust. INSOLVENT DEBTORS LAW; PROCEDURE. 255 § 132. Powers and duties of have the same powers, and be * * * The enforcement of trusts is a copious source of the juris- diction of courts of equity, and when the property of any debtor is vested in a trustee or trustees, a court of equity has jurisdiction to compel the execution of the trust. As under our Revised Statutes, in relation to attachments against ab- sconding, concealed, and nonresi- dent debtors, and assignments made under the statutes in relation to insolvents, the property of the debtor and the insolvent became vested in trustees for the benefit of creditors. I have always supposed that the provisions which those statutes contain for settling con- troversies arising between the trus- tees and other persons in the settle- ment of any demands against the debtor, or of debts due to his es- tate, by a reference to disinterested persons, to be agreed upon, and in case such other person would not agree or consent, then to be ap- pointed in the manner specified, upon the application of the trus- tees, with power to hear and de- termine the controversy and con- cluding the rights of the parties, originated in the principles of equity to which I have referred, and that they were not obnoxious to the provisions of the Constitu- tion, touching the right of trial by jury." In the same case, at pages 151- 153, Denio, Ch. J., said: "Long before the adoption of the Con- stitution, a practice had grown up of winding up and settling the affairs of insolvent estates and in- solvent corporations, and of estates referees. — Such referees shall subject to the like duties and in the hands of trustees, by suits in equity; and another practice had, under legislative authority, pre- vailed to a considerable extent, of settling such estates by subjecting the demands in favor of or against them to adjudication by referees appointed by mutual consent, or if such consent could not be obtained, by an appointment of such referees on the application of one of the parties to a court or judge. For instance, the trustees of the estates of insolvent debtors, under any of the forms of insolvency regulated by statute, might apply to the officer who appointed them, or to any officer having a like authority, to appoint referees to adjudicate uporv any controversy between them, and any person who had a claim against the estate, or any person against whom they, as trustees, made a claim, and the referees were to possess the same powers as refer- ees appointed in personal actions. The estates of insolvent corpora- tions were settled and the lia- bilities of the stockholders were enforced by summary proceedings, without a jury trial, as was ex- plained in the Matter of the Em- pire Bank (18 N. Y. 199). In this, class of cases, causes of action to which a jury trial was appropriate, and which, if unconnected with an insolvent estate, could not be con- stitutionally enforced in any other way, were subject to a summary mode of adjudication. * * * Existing laws had, prior to the act which is now challenged, and prior to the Constitution, authorized the appointment of a receiver of in- 256 LAW AND PRACTICE AS TO REFERENCES. obligations, and shall receive the same compensation, as ref- erees appointed by the Supreme Court, in personal actions pending therein.* The case is brought to a hearing in the same manner as on the reference of issues in actions.' The court has the power to issue a commission to take the testi- mony of a nonresident witness, to be used upon the hearing before the referee,'" but the referee may issue a commission to take the testimony of witnesses residing out of the county of the trustee's residence." The report of the referee must state the referee's findings of fact and conclusions of law separately; and if it does not, the court will require it." This is a substantial right, and the remedy is by motion to refer back the report, not to set it aside. '^ The referees are " to determine the controversy " and " shall have the same powers solvent corporations, to take the 11. "Referees may issue commis- assets into his hands, and enforce sion. — When any witness to such the liabilities of the parties bound controversy shall reside out of the to contribute. I am of opinion county where the trustees resided that the statute in question is in at the time of their appointment, pari materia with those which have the referee or referees appointed to been mentioned; that it was hear said controversy shall have founded upon the same motives of power to issue a commission or policy, and was designed to pro- commissions in like manner as jus- duce a similar result, namely, a tices of the peace are now author- speedy and inexpensive liquidation ized to issue the same, and the of the affairs of the insolvent com- testimony so taken shall be re- pany. Hence it was a case in which turned to said referee or referees a trial by jury had not been in- in the same manner, and be read variably in use before the adoption before them on a hearing, in like of the Constitution, and such a manner as testimony taken on a mode of trial was not, therefore, commission before justices of the guaranteed by its provisions.'' peace. (L. 1862, ch. 373; R. S., pt. 2, 8. L. 1862, ch. 373; R. S., pt. 2, ch. V, tit. I, art. VIII, § 22; Hey- ch. V, tit. I, art. VIII, § 24; Hey- decker's Gen. Laws, Vol. 4, p. 4917.) decker's Gen. Laws, Vol. 4, p. 4917. 12. Matter of Harmony Fire & 9. Ante, §§ 29, 30. Marine Ins. Co., 14 Abb. (X. S.) 10. Paddock v. Kirkham, 38 292, n. Hun, 376; afld., 102 N. Y. 597; n 13- Van Slyke v. Hyatt, 46 N. Y. Civ. Proc. Rep. 50; 18 Abb. N. C. 259; 11 Abb. (N. S.) 58. 446, n. INSOLVENT DEBTORS LAW; REFEREES REPORT. 25/ as referees appointed in the Supreme Court." The report of the referees shall be filed in the same office where the rule for . their appointment was entered, and shall be conclusive on the rights of the parties, if not set aside by the court,'* and judgment may be entered thereon. '^ Unless a stipulation is signed by the parties to the controversy or their attorneys, waiving the signing of the testimony by the witnesses, the same must be signed by the witnesses and filed with the report.'^ 14. L. 1862, ch. 373; R. S., pt. 2, 15. Austin v. Rawdon, 42 N. Y. ch. V, tit. I, art. VIII, § 25. 155; revg. 44 Barb. 434. 16. Supreme Court Rule 30. 17 258 LAW AND PRACTICE AS TO REFERENCES. CHAPTER VI. REFERENCE IN PROCEEDINQ TO DISCOVER LIFE TENANT. Section 133. When the proceeding may be maintained. 134. The petition and proceedings thereon. 135. The reference and proceedings thereon. 136. The final order. § 133. When the proceedings may be maintained A per- son entitled to claim real property, after the death of another who has a prior estate therein, may, not oftener than once in each calendar year, apply by petition to the Supreme Court, at a Special Term thereof, held within the judicial district, wherein the property, or a part thereof, is situated, for an order, directing the production of the tenant for life, as prescribed in this title, by a person, named in the petition, against whom an action of ejectment to recover the real property can be maintained, if the tenant for life is dead; or. when there is no such person, by the guardian, husband, trus- tee, or other person, who has, or is entitled to, the custody of the person of the tenant for life, or the care of his estate.' Proceedings under this section of the statute cannot be maintained to require the production of a devisee who holds a terminable fee, which may possibly be defeated by death without issue. ^ § 134. The petition and proceedings thereon. — The peti- tion must be in writing, and verified by the afifidavit of the petitioner, to the effect that the matters of fact therein set forth are true. It must contain: 1. Code of Civ. Proc, § 2302. 11 Civ. Proc. Rep. 155; 2 St. Repr. 2. Matter of Hyde, 41 Hun, 72; 371. DISCOVERY OF LIFE TENANT; PROCURING REFERENCE. 259 1. A description of the real property, and a statement of the petitioner's interest therein, and of such other facts as show that the case is within the provisions of the last section. 2. An averment that the petitioner believes that the per- son, upon whose life the prior estate depends, is dead, to- gether with a statement of the grounds upon which the pe- titioner's belief is founded.' A copy of the petition, including the affidavit, together with notice of the time and place at which the petition will be presented, must be personally served, at least fourteen days before its presentation, upon the person required, by the prayer thereof, to produce the tenant for life.'* Upon the presentation of the petition and affidavit, with due proof, by affidavit, of service of a copy thereof and of the notice, if sufficient cause to the contrary is not shown by the adverse party, the court must either issue a commission, as prescribed in the following sections of this title; or make an order, directing the adverse party, at the time and place therein specified, before the court, or a referee therein desig- nated, to produce the person upon whose life the prior es- tate depends, or in default, to prove that he is living.' The proceeding may be stayed, if the person upon whom the notice is served, presents to the court, presumptive proof, by affidavit, that the person, whose death is in question, is, or lately was, at a place certain, without the state, and the court must thereupon make an order, requiring the petitioner to take out a commission, directed to one or more persons residing at or near that place, either designated in the order, or to be appointed upon a subsequent application for a com- mission, for the purpose of obtaining a view of the person, 3. Code of Civ. Proc, § 2303. 6. Code of Civ. Proc, i 2305. 4. Code of Civ. Proc, § 2304. 26o LAW AND PRACTICE AS TO REFERENCES. whose death is in question, and of taking such testimony, respecting his identity, as the parties produce.* § 135. The reference and proceedings thereon When an order of reference is made, a certified copy thereof must be served, at least fourteen days before the time therein speci- fied, upon the person required to make the production or proof, or upon his attorney. Upon presentation of proof of service, by affidavit, the court, or the referee, must, at the time and place specified in the order, or at the time and place to which the hearing may be adjourned, hear the allegations and proofs of the parties, respecting the identity of any per- son produced, with the person whose death is in question, or concerning the failure to produce him, and whether he is living. The referee in these proceedings has the same pow- ers as a referee appointed for the trial of an issue in an action.^ If the life tenant is imprisoned, for any cause, except upon a sentence for a felony, he may be brought before the referee upon a writ of habeas corpus.^ The referee must deliver his report to the petitioner, or file it with the clerk, within ten days after the case is closed. He must state therein, whether any person was or was not produced before him, as being the person whose death is in question. He must append thereto, in the form of deposi- tions, the proofs, if any, respecting the identity of any per- son so produced, with the person whose death is in question; or, if no one is so produced, upon the question whether the latter person is living. He must also state, in his report, his conclusions upon the questions controverted before him.' 6. Code of Civ. Proc, § 2311. 8. Code of Civ. Proc, § 2307. 7. Code of Civ. Proc, § 2306. 8- Code of Civ. Proc, § 2308. DISCOVERY OF LIFE TENANT; REFEREe'S REPORT, ETC. 261 § 136. The final order — Upon the referee's report, and the proofs thereto appended, an order of the court may be made, according to the facts found by the referee, either (i) dis- missing the proceedings with costs against the petitioner,'" or (2) declaring that the life tenant is presumed to be dead, for the purpose of the proceedings, and directing that the petitioner be forthwith let into possession of the real prop- erty, as if that person was actually dead." The referee is entitled to the same compensation as a ref- eree in the trial of an action,'^ viz. : Ten dollars for each day spent in the business of the reference j'^ and where costs are awarded, they must be fixed by the court at a gross sum, not exceeding $50, in addition to disbursements.''* 10. Code of Civ. Proc, § 2309. 13. Code of Civ. Proc, I 3296. 11. Code of Civ. Proc, § 2310. 14. Code of Civ. Proc, § 2316. 12. Code of Civ. Proc, § 2306. 262 LAW AND PRACTICE AS TO REFERENCES. CHAPTER VII. REFERENCES IN PROCEEDINGS FOR COLLECTION OF TAXES. Section 137. Supplementary proceedings against nonresidents. 138. Supplementary proceedings to collect tax. § 137. Supplementary proceedings against nonresidents If any sheriff shall neglect to return any warrant as directed therein, or to pay over any money collected by him in pur- suance thereof, he shall be proceeded against in the Supreme Court, by attachment, in the same manner, and with like effect as for similar neglect in reference to an execution is- sued out of the Supreme Court in a similar action, and the proceedings therein shall be the same in all respects. If any such warrant shall be returned unsatisfied, wholly or partly, the county treasurer may obtain an order from a judge of the Supreme Court of the district, or a county judge of the county, of such treasurer, issuing the warrant, requiring such nonresident or any person having property of such nonresi- dent, or indebted to him, to appear and answer concerning the property of such nonresident. The same remedies and proceedings may be had in the name of such county treas- urer or comptroller before the officer granting such order, and with a like effect, as are provided by law in proceedings against a judgment debtor supplementary to execution against him, returned wholly or in part unsatisfied. The ex- penses of a county treasurer, and such compensation as the board of supervisors may allow him for his services under this section, and for making and transmitting to the assessors of the several towns of his county an abstract or copy of the statements of the agents of nonresident creditors shall be a county charge.' 1- General Tax Law, Laws of 1896, ch. 908, § ^^. REFERENCES ON COLLECTION OF TAX. 263 § 138. Supplementary proceedings to collect tax If a tax exceeding ten dollars in amount levied against a person or corporation is returned by the proper collector uncollected for want of personal property out of which to collect the same, the supervisor of the town or ward, or county treas- urer, or the president of the village, if it is a village tax, rnay, within one year thereafter, apply to the court for the institu- tion of proceedings supplementary to execution, as upon a judgment docketed in such county, for the purpose of col- lecting such tax and fees, with interest thereon from the fifteenth day of February, after the levy thereof. Such pro- ceedings may be taken against a corporation, and the same proceedings may thereupon be had in all respects for the collection of sucH tax as for the collection of a judgment by proceedings supplementary to execution thereon against a natural person, and the same costs and disbursements may be allowed against the person or corporation examined as in such supplementary proceedings, but none shall be al- lowed in his or its favor. The tax, if collected in such pro- ceeding, shall be paid to the county treasurer, or to the supervisor of the town, and if a village tax, to the treasurer of the village. The costs and disbursements collected shall be- long to the party instituting the proceedings, and shall be applied to the expense of such proceeding. The president of a village and a county treasurer shall have no compensation for any such proceeding. A supervisor shall have no other compensation except his per diem pay for time necessarily spent in the proceeding.'' Where an application is made for an order requiring a resident of the county, against whom a tax exceeding $io has been returned by the collector uncollected, to appear and 2. Id., § 259. 264 LAW AND PRACTICE AS TO REFERENCES. be examined concerning his property, the affidavit need only allege the facts stated in the section of the law as above quoted; and need not allege facts sufficient to show that the assessors and board of supervisors had jurisdiction to make the assessment.^ No formal return by the collector of the tax warrant is necessary to enable this proceeding to be maintained, and a note on the margin of a tax bill " not pay," has been held sufficient to warrant the institution of supple- mentary proceedings, although nothing was shown to in- dicate that the note was made by the collector.'* In such proceedings the tax debtor cannot prove that he had suffi- cient personal property out of which to make the tax.s 3. Matter of Conklin, 36 Hun, 4. Matter of Veith, 165 N. Y. 588. In an action brought by a re- 205. In this case the provisions of ceiver appointed in supplementary the statute were held applicable to proceedings to collect the amount the city of Rochester under its of an unpaid tax from the de- charter. linquent taxpayer, every necessary 5. Matter of Hartshorn, 17 N. Y. requirement to make a valid tax Supp. 567; 44 St. Repr. 16. must be shown. (Inman v. Cole- man, 37 Hun, 170.) REFERENCE ON SALE OF REAL ESTATE, ETC. 265 CHAPTER VIII. REFERENCE ON SALE OR HORTQAQE OF REAL ESTATE OF INFANT, LUNATIC, IDIOT, OR HABITUAL DRUNKARD.* Section 139. Proceedings, how instituted. 140. The proof and referee's report. 141. Confirmation of report. § 139. Proceedings, how instituted The proceedings to procure the sale or mortgage of the real estate of infants, lunatics, idiots, or habitual drunkards are denominated special proceedings, and are begun by petition.' The stat- ute provides that upon the presentation of the petition, and the filing of the bond, where the filing of such a bond shall be necessary, the court must make an order appointing a suitable person a referee to inquire into the merits of the application. The referee must examine into the truth of the allegations of the petition; hear the allegations and proofs of all persons interested in the property, or otherwise in- terested in the application; and report his opinion thereupon, together with the testimony with all convenient speed.^ The requirement of the statute as to reference is substantial and 1. Code of Civ. Proc, §1 2349, name and residence of the person 2350. proposed as a special guardian or " The petition in proceedings to committee, the relationship, if any, sell, mortgage, or lease real estate which he bears to the infant, luna- belonging to an infant or lunatic, tic, idiot, or habitual drunkard, and idiot or habitual drunkard, shall the security proposed to be given; state, besides the grounds for a and also whether any previous ap- sale, mortgage, or lease of the plication has been made, and, if so, property, and the other matters re- the time thereof, and what disposi- quired by the Code, the age and tion was made of the same." (Su- residence of the infant, lunatic, preme Court Rule 55.) idiot, or habitual drunkard, and the 2. Code of Civ. Proc, § 2354. *For complete work on disposition of real property of infant, lunatic^ etc., see " Fiero on Special Proceedings," vol. 2, pp. 731-771. 266 LAW AND PRACTICE A3 TO REFERENCES. must be complied with.^ The order must be made to the court and not by a judge.'* It may be made by the County Court which is always open for that purpose.' § 140. The proof and referee's report The referee must inquire into the truth of the matters alleged in the petition,* and for that purpose he may issue his subpoena for witnesses as in other special proceedings.' He must report as to whether a sale, mortgage, or lease of the premises (or any and what portion thereof), would be beneficial to the infant, lunatic, idiot, or habitual drunkard, and the particular rea- son therefor, and whether the infant, lunatic, idiot, or habitual drunkard is in absolute need of having some and what por- tion of the proceeds of such sale, mortgage, or lease, for a purpose provided in section 2348 of the Code, in addition to what he might earn by his own exertions; and such referee shall also ascertain and report the value of the property or interest to be disposed of, specifically, as to each separate lot or parcel, and whether there is any person entitled to dower or a life estate, or estate for years, in the premises, and the 3. Matter of Valentine, 72 N. Y. In Elwood v. Northrup (106 N. 184; Battel V. Torrey, 65 N. Y. 294; Y. 172) no reference to inquire Elwood V. Northrup, 106 N. Y. 172; into the merits of the application 8 St. Repr. 687; Losey v. Stanley, was proved, or that the court was 147 N. Y. 560, 573; Warren v. Union informed of the situation and value Bank of Rochester, 157 N. Y. 259, of the land, the reason for its sale, 276. the name of the intended pur- In Matter of Valentine (72 N. Y. chaser, the price to be paid, or the 184) it was held, that the jurisdic- manner of payment; and it was tion given to the court, being held that a valid sale was not estab- purely statutory, can only be exer- lished and the purchaser acquired cised as the statute directs; and the no title under the conveyance, requirement that the petition "shall 4. Code of Civ. Proc, § 2354; be referred " is substantial and can- Matter of Bookhout, 21 Barb. 348. not be dispensed with. An omis- 5. Code of Civ. Proc, § 365; sion to refer constitutes a fatal de- Brown v. Snell, 57 N. Y. 286. feet in the proceedings. 6. Code of Civ. Proc, § 2354. 7. Ante, §§ 72, 122. referee's report and confirmation. 267 terms and conditions on which it should be sold. And the referee's report shall give such further facts as are necessary or proper on the application. The facts in relation to the value of the property or interest to be disposed of, required to be ascertained and reported upon by the referee, must be proven on such reference by evidence of at least two dis- interested persons, in addition to that of the petitioner, and the report shall not refer to the petition or any other papers for a statement of fact.^ The report of the referee should state the objects to which the avails of a mortgage, lease, or sale of property are to be applied and should not refer to the evidence for a statement thereof.^ The testimony of the wit- resses must be signed and filed with the referee with his report.'" § 141. Confirmation of report.— Upon the filing of the ref- eree's report, and after examining into the matter, the court must make a final order upon the application. In a proper case a final order, confirming a referee's report, must direct that the real property, or term, estate, or other interest in real property, or a part thereof, or an inchoate right of dower therein, as is necessary, or as justice requires, be mortgaged, let for a term of years, sold, released, or conveyed by the special guardian appointed as prescribed in this title, or by the committee of the property of the lunatic or other incom- petent person. The final order must also contain such di- rections respecting the time, manner, and conditions of the sale, release, or conveyance directed thereby, as the court thinks proper to insert therein." The order must be made 8. Supreme Court Rule 56. 10. Supreme Court Rule 30; Code 9. Matter of Lampman, 22 Hun, of Civ. Proc, § 2354. 239. II- Code of Civ. Proc, § 2355. 268 LAW AND PRACTICE AS TO REFERENCES. by the court," and the guardian cannot convey the prem- ises to himself.'^ The court cannot order sale of the property of a lunatic until a commission in lunacy has been issued and returned; "•■ and an inquisition of lunacy taken in another state is not sufficient to authorize a sale of the lunatic's estate.'^ 12. Matter of Bookhout, 21 14. Matter of Payn, 8 How. 220. Barb. 348. 15. Matter of Perkins, 2 Johns. 13. Buderus v. Immen, 20 Week. Ch. 124; Matter of Ganse, 9 Paige, Dig. 88. 416. REFERENCES ON DISSOLUTION OF CORPORATION. 269 CHAPTER IX. REFERENCES IN PROCEEDINGS FOR VOLUNTARY DISSOLUTION OF CORPORATIONS. Section 142. How proceedings may be instituted. 143. Presentation of petition and order of reference. 144. The hearing and the report. 145. Application for final order. § 142. How proceedings may be instituted The statute provides for a voluntary dissolution of a corporation and pre- scribes the procedure therefor.' These provisions, however, apply only to corporations organized for the purposes of trade, business, and profit, and not to those of a social char- acter.^ The proceeding is purely statutory and the court has no power or authority to act, except as such power is con- ferred by statute,^ and the proceedings must conform thereto.* It is provided that if a majority of the directors, trustees, or other officers, having the management of the concerns of a corporation created by or under the laws of the state, discover that the stock, effects, and other property thereof are not suilficient to pay all just demands, for which it is liable, or to afford a reasonable security to those who may deal with it; or if, for any reason, they deem it bene- ficial to the interest of the stockholders that the corporation 1. Code of Civ. Proc, §§ 2419- or to a municipal or other political 2431. corporation, all of which are ex- 2. In re Sportsman's Assn., 15 empted from its provisions. Civ. Proc. Rep. 215; 17 St. Repr. 3. Matter of Boynton S. & F. 879. In Matter of Am. D. F. Assn. Co., 34 Hun, 369, 371. (22 Abb. N. C. 231), it was held 4. Matter of The Mart, 22 Abb. that the provisions of the Code N. C. 227; Chamberlain v. Roches- apply to all corporations, except to ter S. P. V. Co., 7 Hun, 557; Mat- an incorporated library, religious ter of Christen-Jensen Co., 27 Abb. corporation, select school, or acad- N. C. 303; 21 Civ. Proc. Rep. 241; emy incorporated by the regents of 40 St. Repr. 621; afTg. 39 St. Repr. the university, or by the legislature, 379. 270 LAW AND PRACTICE AS TO REFERENCES. should be dissolved, they may present a petition to the Su- preme Court, praying for a final order dissolving the cor- poration, as prescribed in this title.' § 143. Presentation of petition and order of reference The petition and other papers must be presented at a Special Term of the Supreme Court, held within the judicial district, embracing the county wherein the principal ofifice of the cor- poration is located. The court may either entertain or dis- miss the application. Where it entertains the appHcation, the court must make an order, requiring all persons interested in the corporation to show cause before it, or before a ref- eree designated in the order, at a time and place therein specified, not less than three months after the granting of the order, why the corporation should not be dissolved.^ The order is in the nature of a process for bringing persons in- terested before the court, and unless its provisions are in strict compliance with the statute, it is void.'' Objection may be taken by any of the parties to the proceeding at any stage thereof.^ A copy of the order must be published, as pre- scribed therein, at least once in each of the three weeks im- mediately preceding the time fixed therein for showing cause, in the newspapers printed at Albany, in which legal notices are required to be published; and also in one or more news- papers, specified in the order, published in the city or county wherein the order is entered.' Service must also be made as prescribed by the statute," and the court has no jurisdic- tion to entertain the proceedings unless a service of the order is made or waived." 5. Code of Civ. Proc, I 2419. 9. Code of Civ. Proc, I 2424. 6. Code of Civ. Proc, § 2423. 10. Code of Civ. Proc, § 2425. 7. People V. Seneca Lake G. & 11. People v. Seneca Lake G. & W. Co., 52 Hun, 174. W. Co., S2 Hun, 174; 17 Civ. Proc. 8. Matter of Pyrolusite M. Co., Rep. 130; 23 St. Repr. 346. 29 Hun, 429; 3 Civ. Proc. Rep. 270. REFEREE S REPORT AND FINAL ORDER. 27 1 § 144. The hearing and the report — At the time and place specified in the order, or at the time and place to which the hearing is adjourned, the court, or the referee, must hear the allegations and proofs of the parties, and determine the facts. If a referee was not designated in the order to show cause, the court may, in its discretion, appoint a referee when or after the order is returnable. The decision of the court,, or the report of the referee, must be in writing, and must be made and filed with all convenient speed. It must con- tain a statement of the effects, credits, and other property, and of the debts and other engagements, of the corporation, and of all other matters pertaining to its affairs;'^ and a failure of the referee to make in his report a statement as above set forth is fatal to the validity of the proceedings and renders an order dissolving the corporation, entered upon such defective report, void.'^ If a petitioner neglects or re- fuses, after a referee has been appointed, to apply for a final order, he may be compelled by the court to do so, in order that all parties may be protected. "* Upon the hearing the referee may use the original petition and the schedules an- nexed thereto; and the clerk must transmit them accordingly upon the written order of the referee, and in that case they must be returned with his report. '^ § 145. Application for final order — Where the hearing is before a referee, a motion for a final order must be made to the court, upon notice to each person who has made himself a party to the proceedings, by filing with the clerk, before the close of the hearing, a notice of his appearance, in person or 12. Code of Civ. Proc, § 2426. Co., 29 Hun, 429; 3 Civ. Proc. Rep. 13. Matter of Boynton S. & F. 270. Co., 34 Hun, 369; 6 Civ. Proc. Rep. 14. Matter of Peekamose Fish- 342; Matter of Pyrolusite Mang. ing Club, 151 N. Y. sn- 15. Code of Civ. Proc, I 2427. 272 LAW AND PRACTICE AS TO REFERENCES. by attorney, specifying a post-office within the state, where such a notice may be served. The notice may be served as prescribed in this act for the service of a paper upon an attorney in an action. Where the hearing was before the court, a motion for a final order may be made immediately, or at such a time and upon such a notice as the court pre- scribes.'^ A defendant may procure a final order upon a reference of this nature, where his affidavit sets out all the proceedings and showing that the petitioner neglects to pro- ceed, although the referee's report has been delivered to him. '7 16. Code of Civ. Proc, § 2428. ing Club, 151 N. Y. 511; 45 N. E. 17. Matter of Peekamose Fish- Repr. 1037. MISCELLANEOUS REFERENCES. 273 CHAPTER X. MISCELLANEOUS REFERENCES. Section 146. Reference in proceeding to compel an attorney to pay over money, etc. 147. Reference of controversy by receiver of corporation. 148. Reference in proceedings for sale of corporate real estate. 149. References for other purposes under the Code. 150. References under various statutes. § 146. Reference in proceeding to compel an attorney to pay over money, etc — Upon a summary proceeding to com- pel an attorney to pay over moneys collected in his pro- fessional capacity, the court may order a reference as to the extent of the attorney's lien upon such moneys.' In proceed- ings to compel an attorney to deliver papers, a reference is proper to determine the amount due the attorney claiming a lien upon such papers."" The proceeding in either case is instituted by a verified petition setting forth the facts through which it is claimed the attorney is improperly withholding money from his client, and, while in many cases the court might be justified in making an order directing immediate payment, the more orderly proceeding is to direct a refer- ence to take proof of the facts alleged in the petition, and to ascertain the precise amount which is due from the attorney to his client, such reference to proceed summarily to the end that the court may adjudge the payment of the amount.^ § 147. Reference of controversy by receiver of corporation. — A receiver of a corporation has the same power to settle 1. Matter of Fincke, 6 Daly, iii; 3. Taylor Iron & Steel Co. v. Brown v. Mayor of New York, 11 Higgins, 49 St. Repr. 645; 20 N. Y. Hun, 21; Matter of Gillespie v. Supp. 960. Mulholland, 12 Misc. 40; 66 St. 3. Matter of Raby, 29 App. Div. Repr. 532; 33 N. Y. Supp. 33. 225; Matter of Ernst, 54 App. Div, 18 274 LAW AND PRACTICE AS TO REFERENCES. any controversy arising in the course of his administration of his trust, between himself and debtors or creditors of the corporation, as is given to trustees of insolvent debtors.* The jurisdiction of the court does not depend upon the nature of the claims or the defense thereto, and the fact that the receiver has commenced an action at law to recover the debt does not conclude him from afterward applying for the reference provided by the statute.^ The statute authorizes receivers of corporations to settle any controversy that shall arise between them and any debtors or creditors of such corporation, by a reference, as is given by law to trustees of insolvent debtors; and the same proceedings for that purpose shall be had, and with the like efifect; and application for the appointment of referees may be made to any officer author- ized to appoint such referees on the application of trustees of insolvent debtors, who shall proceed therein in the same manner; and the referees shall proceed in like manner, and file their report with the like efifect in all respects.* In a case where there was a dispute between the receivers of two sav- ings banks, the court compelled a reference of the contro- versy.7 The procedure is the same as in cases of contro- versies arising in estates of insolvent debtors.* The report is made in same manner and the disposition thereof is the same as in interlocutory references.^ 363; Matter of Thomasson v. La Bowling Green Savings Bank, 65 Tourette, 63 App. Div. 408; Matter Barb. 275. Where the fund or of Martin, 73 App. Div. 505. property is before the court, the 4. Ante, § 13. See Heydecker's court may administer justice to Gen. Laws (2d ed.). Vol. 4, p. 4982, claimants without suit. (Brein v. § 73. Light, 37 Misc. 771.) 5. Crosby v. Day, 81 N. Y. 243. 8. Ante, § 132. 6. See note 4, above. 9- Ante, § 74; Supreme Court 7. Guardian Savings Bank v. Rule 30. REFERENCES ON SALE OF CORPORATE REAL ESTATE. 275 § 148. Reference in proceedings for sale of corporate real estate — The court may order the leasing, sale, mortgage, or conveyance of corporate real estate whenever the law requires that leave of the court must be obtained therefor.'" The pro- ceeding is instituted by the presentation to the court of a petition, duly verified." Upon presentation of such petition, the court may immediately proceed to hear the application, or it may direct notice to be given; and the court may, in any case, appoint a referee to take the proofs and report the same to the court, with his opinion thereon.'^ It is the usual practice to present a verified petition, by the trustees, stating fully the resolution of the trustees to sell, or if no trustees, by a member or stockholder of the corporation. It is also the usual course for the court to grant the order on presentation of the petition, giving the corporation leave to make the sale and execute the required conveyance of the property, and references in such proceedings are rare, unless the petition for sale is contested. If a reference is ordered, it follows the usual course of references directed for taking proofs and reporting the same with the referee's opinion.'^ § 149. References for other purposes under the Code ■ The Code authorizes references for purposes not before enume- rated. Brief mention only will be here made of the more important. Where a provision of the Code authorizes the court to approve an undertaking or the sureties thereto; or to make 10. Code of Civ. Proc, § 3390. 73 N. Y. 82; Wyatt v. Benson, 23 The court may order the leasing, Barb. 327; 4 Abb. 182; Matter of sale, and conveyance of the real St. Ann's Church, 23 How. 285; 14 estate of any religious, benevolent, Abb. 424.) charitable, scientific, missionary so- H- Code of Civ. Proc, § 3391. ciety or orphan asylum. (Mad. 12. Code of Civ. Proc, § 3392. Ave. Baptist Church v. Baptist 13. See, ante, § 79. Church in Oliver St., 46 N. Y. 131; 276 LAW AND PRACTICE AS TO REFERENCES. an examination or inquiry; or to appoint an appraiser, re- ceiver, or trustee; it may direct a reference to one or more persons designated in the order, either to make the approval, examination, inquiry, or appointment, or to report the facts to the court, for its action thereupon. '^ The report of the referee should be filed with the testimony,'^ and the unsuc- cessful party have time to bring the matter to a hearing at Special Term, where an appropriate decree may be made.'^ Where a justification of sureties to an undertaking is re- quired, a referee may be appointed upon the motion of either party, or upon the court's own motion, to take the justifica- tion of such sureties and to report the evidence upon the same to the court or judge, with his opinion. The court may further direct that either party shall pay the expenses of such reference.''' In an action for damages, where the plaintifif is entitled to judgment by default, a reference may be ordered to as- certain and determine the amount to which the plaintifif is entitled.'^ In a judgment creditor's action, a discovery may be com- pelled, by directing a person, required to make it, to appear before the court, or a referee appointed by it, and to be exam- ined, under oath, concerning the matters pertaining to the discovery.'' In proceedings for the appointment of a committee of the person and property of a lunatic, idiot, or habitual drunkard, the court may make an inquiry, by means of a reference or otherwise, as it thinks proper, with respect to any matter, 14. Code of Civ. Proc, § 827. 15. Supreme Court Rule 30. This section, by its language and 16. Niebuhr v. Schreyer, 18 St. position, has nothing to do with Repr. 814; 2 N. Y. Supp. 413. the trial of issues. (Farmers' Nat. 17. Code of Civ. Proc, § 1335. Bank v. Houston, 44 Hun, 567; 8 18. Code of Civ. Proc, § 1729. St. Repr. 557.) 19. Code of Civ. Proc, § 1878. REFERENCES IN CONDEMNATION PROCEEDINGS. 2^"^ not involved in the questions tried by a jury, the determina- tion of which is necessary, in the course of the proceedings. The expense of such an inquiry must be paid by the pe- titioner.""" Where an appeal is taken to the Appellate Division of the Supreme Court, from a decree of a Surrogate's Court, upon the facts, the appellate court may, in its discretion, receive further testimony or documentary evidence, and appoint a referee.^' In proceedings before a surrogate, in aid, supervision, or control of an executor or administrator, where a petition is made for the discovery of property withheld, and the person, or any of the persons, required to be cited for examination, does not reside, or is not within the county of the surrogate, a referee may be appointed to take the examination of such person or persons." In proceedings for the condemnation of real property, the court may try the issues raised by the petition and answer, or it may order it to be referred to a referee to hear and determine, and upon such trial, the referee must file a de- cision in writing, or deliver it to the attorney for the pre- vailing party, within twenty days after the final submission of the proofs and allegations of the parties and the provisions of the Code relating to the form and contents of decisions upon the trial of issues of fact by the court or a referee, and to making and filing exceptions thereto, and the making and settlement of a case for the review thereof upon appeal, and to the proceedings which may be had, in case such decision is not filed or delivered within the time herein required, and to the powers of the court and referee upon such trial, shall 20. Code of Civ. Proc, § 2334. 22. Code of Civ. Proc, I 2707. 21. Code of Civ. Proc, § 2586. 278 LAW AND PRACTICE AS TO REFERENCES. be applicable to a trial and decision under this title.^^ If there are conflicting claims to the money to be paid as com- pensation for the property taken, it may be paid into court and the court may order a reference to ascertain the facts upon which to determine who is entitled thereto.^* Also, when an answer to a petition has been interposed, the plain- tiff may be permitted to take possession of the land upon deposit of the sum stated in the answer as the value of the property, and a referee may be appointed to ascertain the damages for the use of the premises in case the petition is dismissed or the proceedings abandoned by the plaintiff. ^^ In a proceeding for the enforcement of a lien against a vessel in which the claim of the lienor is contested, the issue so raised may be referred to a referee to be heard and de- termined.^^ § 150. References under various statutes. — The Highway Law provides that whenever any two or more towns shall be liable to make or maintain any bridge or bridges, the same shall be built and maintained at the joint expense of such towns;^'' and "whenever any adjoining towns shall be liable to make or maintain any bridge over any streams dividing such towns, whether in the same or different counties, three freeholders in either of such towns may, by petition signed by them, apply to the commissioners of highways in each of such towns, to build, rebuild, or repair such bridge within a reasonable time, and if such commissioners refuse to build, rebuild, or repair such bridge within a reasonable time, either for want of funds or any other cause, such freeholders, upon 23. Code of Civ. Proc, § 3367. 27. L. 1890, ch. 568, § 134; 24. Code of Civ. Proc, § 3378. Greene's Highway Law (2d ed.), 25. Code of Civ. Proc, i 3380. p. 150; Heydecker's Gen. Laws (2d 26. Code of Civ. Proc, § 3425. ed.). Vol. i, p. 1345. REFERENCES UNDER VARIOUS STATUTES. 279 affidavit and notice of motion, a copy of which shall be served on each of the commissioners, at least eight days before the hearing, may apply to the Supreme Court, at a Special Term thereof, to be held in the judicial district in which such bridge, or part thereof, shall be located, for an order re- quiring such commissioners to build, rebuild, or repair such bridge, and the court upon motion may, in doubtful cases, refer the case to some disinterested person to ascertain and report the evidence thereof to the court. Upon the coming in of the report, in case of such reference, or upon or after the hearing of the motion, in case no such reference shall be ordered, the court shall make an order thereon as the justice of the case shall require. If the motion be granted in whole or in part, whereby funds shall be needed by the com- missioners to carry the order into efifect, such court shall specify the amount of money required for that purpose, and how much thereof shall be raised in each town." '^ The Transportation Corporations Law relating to the lo- cation of toll-gates provides that if a majority of the com- missioners of highways of any town in which a toll-gate shall be located, or in an adjoining town, shall deem the location of any gate unjust to the public interests by reason of the proximity of diverging roads or otherwise, they may, on fifteen days' written notice to the president or secretary of the corporation, apply to the County Court of the county in which the gate is located, for an order to alter or change its location. On hearing such application and viewing the prem- ises, if deemed necessary, the court may make such order in the matter as may be just and proper. Either party may, within fifteen days thereafter, appeal to the General Term (Appellate Division) of the Supreme Court from such order, 28. L. 1890, ch. 568, § 136; Greene's Highway Law, p. 153. 28o LAW AND PRACTICE AS TO REFERENCES. on giving such security as the county judge making the order may prescribe. Upon such appeal the Supreme Court, on motion of either party and on due notice, shall appoint three disinterested persons who are not residents of any town through or into which such road shall run, or to or from which it is the principal thoroughfare, or any adjoining town, as referees to hear, try, and determine the appeal. Such referees shall view the premises and the location of the gate, and hear the parties in the same manner as on the trial of an issue of fact, by a referee in a civil action in the Supreme Court, and report their decision thereon and the reasons therefor, and the evidence taken thereon to the Supreme Court, and such court shall review the report and render judgment thereon as justice and equity shall require, which shall be final and conclusive. The referees shall be entitled to the same fees as referees in civil actions in the Supreme Court, to be paid in the first instance by the party in whose favor their report or decision shall be, and the Supreme Court shall award judgment therefor, with such costs and expenses as it may deem reasonable, etc.^' In proceedings to discharge a mortgage of record, which from lapse of time is presumed to have been paid, a petition may be presented to the court and a referee may be ap- pointed to take and report proofs of the facts stated in the petition. 3° 29. L. 1890, ch. 566, I 133; 30. L. 1862, ch. 365, as amended Greene's Highway Law, p. 303; by L. 1898, ch. 174. Sae Fiero on Heydecker's Gen. Laws, Vol. 3, Special Proceedings (2d ed.), Vol. p. 3433. 2. P- "75- TITLE V. THE LAW AS TO ARBITRATIONS AND THE POWERS AND DUTIES OF ARBITRATORS. Chapter I. Arbitrations Generally (§§ 151-157). II. Powers and Duties of Arbitrators and Procedure (§§ 158^ 162). III. Motion to Confirm, Vacate, 'Modify, or Correct Award (§§ 163-166). IV. Judgment and Review thereof (§§ 167-169). V. Revocation of Award and Death of Party (§§ 170-172). CHAPTER I. ARBITRATIONS GENERALLY. Section 151. Introductory; definitions and history. 152. What may be submitted to arbitration. 153. The submission to arbitration and its efJect. 154. Who may make the submission. 155. The effect of arbitration on actions pending. 156. Umpire or additional arbitrator. 157. Provisions of the statute, how far applicable. § 151. Introductory; definitions and history. — Arbitration is defined as " the investigation and determination of a mat- ter or matters of difference between contending parties, by one or more unofficial persons, chosen by the parties, and called ' arbitrators.' " ' " The hearing and determination of a cause between parties in controversy, by a person or per- sons chosen by the parties." ^ The person or persons chosen by parties who have a controversy, to determine their dififer- ences, are called " arbitrators." ^ The agreement by which !• Bouv. Law Diet., Vol. i, p. 160. employed when no lawsuit is An " arbitrator " is distinguish- brought. (See ante, p. i.) able from a " referee," in that the 2. Webster's International Diet, latter is appointed to decide issues jy. in actual suits, while the former is 3. Id. 281 282 LAW AND PRACTICE AS TO ARBITRATIONS. parties submit their differences to the decision of arbitrators is termed a " submission; " ■» and the judgment or decision of the arbitrators, on a matter submitted to them, is an " award." ^ Again, " submission " is the technical designa- tion of that contract by which parties agreed to refer mat- ters which are in dispute, difference, or doubt between them, to be finally decided by the award of judges named by the parties.^ The right to submit matters of difference to arbitration, under the common law has existed in this state from its early history as a colony,'' and continues to this time,^* and in general, a submission by parol is valid.* Common-law arbitrations and the common-law principles and rules govern- ing the same are preserved by the Code of Civil Procedure.' 4. Bouy. Law Diet., Vol. 2, p. 1053. 5. Bouv. Law Diet., Vol. i, p. 205. 6. Morse on Arbitration and Award, 36; Am. & Eng. Encyc. of Law (2d ed.), Vol. 2, p. 539. 7. History of Court of Common Pleas of New York, by Hon. C. P. Daly, I E. D. Smith, xxii. 7a. Cutter v. Cutter, 48 N. Y. Super. 470. In this case the court said: "The first question pre- sented on the argument is whether there is such a thing in this state as a common-law arbitration which can be enforced by the courts. The Court of Appeals have, in some respects, decided that question in the negative. (Bulson v. Lohnes, 29 N. Y. 291.) In that case two arbitrators of the three appointed, proceeded to hear the proofs and made an award. The court held that their proceedings were regular nnder the common law, but void under the statute." 8. Deidrick v. Richley, 2 Hill, 271. 9. Code of Civ. Proc, I 2386; N. Y., L. & W. W. Co. V. Schneider, 119 N. Y. 475; 29 St. Repr. 596. " This title does not aflfect any right of action in affirmance, dis- affirmance, or for the modification of a submission, made either as prescribed in this title or other- wise, or upon an instrument col- lateral thereto, or upon an award made or purporting to be made in pursuance thereof. And, except as otherwise expressly prescribed therein, this title does not aflfect a submission, made otherwise than as prescribed therein, or any pro- ceedings taken pursuant to such a submission, or any instrument col- lateral thereto." (Code of Civ. Proc, § 2386.) WHAT MAY BE SUBMITTED TO ARBITRATION. 283 The Revised Statutes provided a complete system for the submission of controversies to arbitrators, the conduct of arbitrations, the enforcement of awards by the entry of judg- ment thereon and for a revievir upon appeal.'" The general provisions of the Revised Statutes vi^ere continued by the Code of Civil Procedure with but very few changes," and arbitrations are favored by the law and encouraged by the courts." § 152. What may be submitted to arbitration, and how Except as otherwise prescribed in the last section, two or more persons may, by an instrument in writing, duly ac- knowledged or proved, and certified in like manner as a deed to be recorded, submit to the arbitration of one or more arbitrators any controversy existing between them at the time of the submission, which might be the subject of an action. They may, in the submission, agree that the judg- ment of a court of record, specified in the instrument, shall be rendered upon the award, made pursuant to the submis- sion. If the Supreme Court is thus specified, the submission may also specify the county in which the judgment shall be 10. R. S., pt. 3, ch. VIII, tit. 14, pointed by the parties; he is by- Si 1-25. their consent invested with judicial 11. Code of Civ. Proc, §§ 2365- functions in the particular case; he 2386. is to determine the right as be- 12. Fudickar v. Guardian Mut. tween the parties in respect to the Life Ins. Co., 62 N. Y. 392, 399. matter submitted, and all questions Andrews, J., said: "The jealousy of fact or law upon which the right with which, at one time, courts re- depends are, under a general sub- garded the withdrawal of contro- mission, deemed to be referred to versies from their jurisdiction by him for decision. The court pos- the agreement of parties, has sesses no general supervisory yielded to a more sensible view, and power over awards, and if arbi- arbitrations are now encouraged as trators keep within their jurisdic- an easy, expeditious, and inex- tion their award will not be set pensive method of settling disputes, aside because they have erred in and as tending to prevent litiga- judgment either upon the facts or tion. The arbitrator is a judge ap- the law.'' 284 LAW AND PRACTICE AS TO ARBITRATIONS. entered. '3 If it does not, the judgment may be entered in any county.'* A claim to an equitable interest or estate in land may be submitted, as the statute forbidding submissions of claims in fee or for life to real estate relates only to controversies re- garding the legal title. '^ A claim for a term of years may be submitted;'^ also where there is a controversy between owners of adjoining lands as to the division line between them, the question may be submitted to arbitration, '^ and such submission may be made by parol. '^ Thus, where a party constructed a road along a division line, partly on his own land and partly on lands of others without their con- sent, a submission to arbitration, as to how much should be 13. See Code of Civ. Proc, § 2365, as follows: " § 2365. When arbitration for- bidden. — A submission of a contro- versy to arbitration cannot be made, either as prescribed in this title or otherwise, in either of the following cases: " I. Where one of the parties to the controversy is an infant, or a person incompetent to manage his affairs, by reason of lunacy, idiocy, or habitual drunkenness. " 2. Where the controversy arises respecting a claim to an estate in real property, in fee or for life. But where a person, capable of entering into a submission, has knowingly entered into the same with a person incapable of so doing, as prescribed in subdivision first of this section, the objection, on the ground of incapacity, can be taken only in behalf of the person so incapacitated. And the second subdivision of this section does not prevent the submission of a claim to an estate for years, or other interest for ^ term of years, or for one year or less, in real property; or of a controversy respecting the partition of real property between joint tenants, or tenants in com- mon; or of a controversy respect- ing the boundaries of lands, or the admeasurement of dower.'' 14. Code of Civ. Proc, § 2366. 15. Olcott V. Wood, 14 N. Y. 32; affg. 15 Barb. 644. Whenever the claim involves an estate in fee, the legal title, the cause cannot be submitted to arbi- tration (Keep v. Keep, 17 Hun, 152), and such a submission is not merely voidable but absolutely void and incapable of ratification. (Wiles v. Peck, 26 N. Y. 42.) 16. Cox V. Jagger, 2 Cow. 638. 17. Robertson v. McNeil, 12 Wend. 578; Stout v. Woodward, s Hun, 340; affd., 71 N. Y. 590. 18. Ryder v. Dodge, 14 Week. Dig. 84. WHAT MAY BE SUBMITTED TO ARBITRATION. 285 paid by defendant for the use of the land for the purpose of the road, was held valid.'' A religious corporation, not hav- ing the power to sell its land without consent of the court, cannot submit the question of sale to arbitration, nor can the question as to who were legally elected trustees of such cor- poration be determined by arbitration.^" Where parties agree to submit to arbitration any matters in controversy, such arbitration can be sustained, because it is the voluntary act of the parties; but where the law com- pels a party to arbitrate, upon a claim which should properly be the subject of an action, without his assent, such law de- prives him of the right, which is secured by the Constitution, of a trial according to the common course of law,^' and a court of equity will not compel specific performance of an agreement to arbitrate.^^ Where the parties to a contract for furnishing materials and doing work upon a house agree to submit all matters in dispute to an arbitration, such sub- mission is a waiver of the contractor's right to file a me- chanic's lien upon the premises and a bar to an action to foreclose such lien.^^ There is a decided difference between common-law arbi- trations and arbitrations under the Code of Civil Procedure. For example: Common-law arbitrations may be by parol ;^'* and if to more than one arbitrator, all must join in making 10. Mitchell v. Bush, 7 Cow. 185. Abb. 203; affd., 26 How. 599; Hurst 20. Wyatt v. Benson, 23 Barb. v. Litchfield, 39 N. Y. 377. 327; 4 Abb. 182. 23. New York Lumber & Wood- 21. People ex rel. Baldwin v. Working Co. v. Schneider, 15 Civ. Haws, 37 Barb. 440. The court Proc. Rep. 30; 16 St. Repr. 698; cannot decree specific performance afTd., 119 N. Y. 475; 29 St. Repr. of an agreement to arbitrate. (Van sg6. Beuran v. Wotherspoon, 12 App. 24. Ryder v. Dodge, 14 Week. Div. 421; 42 N. Y. Supp. 404.) Dig. 84; Cope v. Gilbert, 4 Den. 22. Sinclair v. Talmadge, 35 348; Valentine v. Valentine, 2 Barb. Barb. 602; Dunnell v. Keteltas, 16 Ch. 430. 286 LAW AND PRACTICE AS TO ARBITRATIONS. the award, else it is void.^s Under the Code these conditions are reversed — the submission must be in writing- ;^^ and if to more than one arbitrator, an award by a majority of them is vaHd, unless the concurrence of all is expressly provided in the submission.^^ § 153. The submission to arbitration and its effect Where no time is fixed in the submission for making an award, it may be fixed by subsequent agreement/* A sub- mission to arbitrators, governed by common-law principles and rules, may be made, notwithstanding the provisions of the Code.^' The provisions of the statute do not restrict the common-law right of arbitration ;3° those provisions apply only to submissions made in accordance therewith.^' The form of a submission is not important. All that is necessary is to clearly show the intent of the parties to submit their dififerences to arbitration and to abide the award, and the submission should be so drawn as to give the arbitrators jurisdiction. It may take the form of mutual bonds so drawm as to show the intent of the parties.^'* A liberal interpreta- tion will be given to the submission and to the award, so as to uphold the latter when not attacked for the corruption or 25. Cope V. Gilbert, 4 Den. 347. 29. New York Lumber & In this case the court said: "The Wood- Working Co. v. Schneider, plaintiff is in a dilemma. If he puts 119 N. Y. 475; 29 St. Repr. 596; his case upon the statute, he can- affg. 16 St. Repr. 698; IS Civ. not succeed, because the submis- Proc. Rep. 30. sion was not in writing; and if he 30. Wood v. Tunnicliff, 74 N. Y. goes upon the common law he 38. must fail, because all of the arbi- 31. Lorenzo v. Deery, 26 Hun, trators did not concur in making 447. the award." 31a. Isaacs v. Beth Hamedash 26. Code of Civ. Proc, § 2366. Society, i Hilt. 469; Brady v. 27. Code of Civ. Proc, I 2371. Mayor of Brooklyn, i Barb. 584- 28. Nichols v. Rensselaer County Ins. Co., 22 Wend. 125. THE submission; who may make. 287 misconduct of the arbitrators.^^ A submission of " all de- mands " includes all questions concerning real as well as per- sonal property; and a party is precluded from bringing an action for any demand subsisting at the time of the submis- sion, though he omitted by accident to lay it before the arbi- trator.^^'' A submission to arbitration implies an agreement to abide by the award," and an agreement to abide by the award implies an agreement to pay.S'* § 154. Who may make the submission. — The general rule is, that where there is legal capacity to contract and a lia- bility to pay there is power to arbitrators A municipal cor- poration may submit to arbitration by resolution of the com- mon council.^* So may a county by its board of supervisors ;r'' and executors and administrators may make a submission in behalf of the estates they represent ;3^ but adverse parties in a corporation cannot submit the question who were duly elected trustees, because the people are a necessary party to 32. Curtis V. Gokey, 68 N. Y. the costs and expenses of the arbi- 300; Locke V. Filley, 14 Hun, 139; tration, the submission should con- Munro v. Allaire, 2 Cai. 319; Dob- tain such authority in express son V. Central R. R. Co. of N. J., terms. (Matter of Vanderveer, 4 38 Misc. 582. Den. 249; People v. Newell, 13 32a. Wheeler v. Van Houten, 12 Barb. 86.) In case of a pending' Johns. 310; Owen v. Boerum, 23 suit, the arbitrators may determine Barb. 187; Munro v. Allaire, 2 Cai. the costs of the suit and include 319; Sellick V. Adams, 15 Johns, them in their award, as well as the 197; Byers v. Van Deusen, 5 Wend, fees and expenses of the arbi- 268; Locke V. Filley, 14 Hun, 139; trators. (Matter of Vanderveer, 4 Jones V. Wellwood, 9 Hun, 166; Den. 249.) afTd., 71 N. Y. 208. 35. People ex rel. Benedict v. 33. Valentine v. Valentine, 2 Supervisors, 24 Hun, 413, 418. Barb. Ch. 430. 36. Brady v. City of Brooklyn,. 34. EflFner v. Shaw, 2 Wend. 567; i Barb. 584 Dufifield v. Whitlock, 26 Wend. 55. 37. People ex rel. Benedict v. Where the submission is under Supervisors, 24 Hun, 413. the statute, if the parties intend to 38. Wood v. Tunnicliff, 74 N. Y. authorize the arbitrators to award 38. 288 LAW AND PRACTICE AS TO ARBITRATIONS. such determination.39 In the case of a copartnership all must unite in a parol, or written and sealed agreement for arbitra- tion, else the firm is not bound;*" but, if authority is given to one member of a firm, in any manner, to make the sub- mission in behalf of all, or if the act of one of the partners is subsequently ratified by the others, the submission by the one is valid, and will bind the firm.*' The same rule applies to a submission by an agent; he may bind his principal when so authorized,*'* and the principal may ratify the agent's act by appearing before the arbitrator and taking part in the trial ;*^ but if the agent enters into a submission in his own name, he will be personally bound to perform the award.'*^ Executors and administrators come within the provisions of the statute and may submit to arbitration claims in favor of or against the estates which they represent,** and this right existed at the common law.*^ This right is founded upon their legal title to the assets of the deceased, their power of disposition, and their authority to adjust and settle claims 39. Wyatt v. Benson, 23 Barb, cannot object that the submission 327; 4 Abb. 182. was by attorneys without authority. 40. McBride v. Hagen, i Wend. (Diedrick v. Richley, 2 Hill, 271; 326; Harrington v. Higham, Hays v. Hays, 23 Wend. 363.) So 41. Pierce v. Morrison, 6 Hun, where the president and two of the 235. trustees of a corporation signed an 41a. McPherson v. Cox, 86 N. Y. agreement for the submission of a 472; revg. 21 Hun, 493. controversy on the part of the cor- 42. Diedrick v. Richley, 2 Hill, poration, and all the trustees ap- 271; Hays V. Hays, 23 Wend. 366; peared and took part in the trial Lowenstein v. Mcintosh, j,"] Barb, it was held sufficient to bind the 251; Smith V. Sweeney, 35 N. Y. corporation by the award. (Isaacs 291. V. Beth Hamedash Soc, i Hilt. Where an attorney submits a 469.) cause to arbitration without his 43. Smith v. Van Nostrand, S client's consent, the client is not Hill, 419. bound by the award. (Steinerville- 44. Wood v. Tunnicliff, 74 N. Y. Bloomington Stone Co. v. White, 38. 25 Misc. 314; 54 N. Y. Supp. 577.) 45. Schoonmaker v. Roosa, 17 But if the parties appear and pro- Johns. 301. ceed before the arbitrators, they WHO MAY SUBMIT TO ARBITRATION. 289 in which the estate is interested/^ Upon the same principle a guardian may submit for his ward."*' Attorneys may sub- mit for their clients,'** but such submission must be with the client's consent, else he is not bound by the award.'*' A mere general authority to collect claims does not authorize an attorney to submit controversies relating to such claims to arbitration,5° unless he has instructions to put such claims into suit. Such direction carries with it the power to refer or arbitrate. 5' The statute absolutely disqualifies and prohibits certain persons from entering into an agreement submitting a con- troversy to arbitration, either at common law or under the statute; these are infants and persons incompetent to manage their afifairs by reason of lunacy, idiocy, or habitual drunken- ness. ^'^ A married woman could not submit to arbitration under the common law prior to the removal of such dis- ability by the Acts of i860 and 1862," as she then had no power to bind herself by such submission,^'* and under the Revised Statutes she was placed in the same class with in- iants and persons of unsound mind." Since the Code, how- ever, all disabilities as to married women are removed. ^^ § 155. The effect of arbitration on actions pending. — A submission to arbitrators of a pending action and of " all 46. Wood V. Tunnicliff, 74 N. Y. 61. See 2 Wait's Law & Practice 38, 43; Russell V. Ladue, i Barb. (7th ed.), 527. .519. 52. Code of Civ. Proc, § 2365. 47. Weed v. Ellis, 3 Cai. ^53. 53. L. i860, ch. 90; L. 1862, ch. 48. Tilton v. United States Life 173. Ins. Co., 8 Daly, 84. 54. Palmer v. Davis, 28 N. Y. 49. Steinerville-Bloo m i n g t o n 242, 249. Stone Co. v. White, 25 Misc. 314; 55. 2 R. S. 541, § I. 54 N. Y. Supp. 577. 56. Code of Civ. Proc, § 2366. 50. Alexandria Canal Co. v. Swann, 5 How. 83- 19 290 LAW AND PRACTICE AS TO ARBITRATIONS. Other actions or causes of action " and " of all other mat- ters of controversy," is a general submission of all ques- tions. ^7 The mere submission to arbitration of a pending suit is a dicontinuance of it,^^ but a valid submission may be made, leaving the suit in full life, provided it appear from the agreement itself that such was the intention of the par- ties. ^^ Where a cause was upon the calendar for trial, and the parties thereto signed an agreement to leave all their differences to three arbitrators named, and that their decision should be final, which agreement was not acknowledged, but was signed by three witnesses, it was held that the agree- ment operated as a discontinuance of the action, although one of the arbitrators refused to act and one of the parties refused to appear;^" the discontinuance may be waived, how- ever, by proceeding voluntarily in the action.^' Where the submission provides that pending suits are to be suspended until the award is made, such submission does not efifect a discontinuance of the suits,^^ but the provision operates as a stay until the award is made, and the award instead of the submission effects the discontinuance. ^^ j\ submission of 57. Jones v. Wellwood, 71 N. Y. from the court and effects a dis- 208; affg. 9 Hun, 166. continuance of the suit." 58. McNulty v. Solley, 95 N. Y. The submission discontinues a 244; Camp V. Root, 18 Johns. 22; pending action, though the sub- Matter of Wright, 6 Cow. 399; mission be void. (Keep v. Keep, Smith V. Barse, 2 Hill, 387; Bank 17 Hun, 152; Jordan v. Hyatt, 3 of Monroe v. Widner, 11 Paige, Barb. 275.) 529; Resseguie v. Brownson, 4 59. Wells v. Lain, 15 Wend. 99, Barb. 541; Wilson v. Williams, 66 103; Buel v. Dewey, 22 How. 342. Barb. 209; Larkin v. Robbins, 2 60. McNulty v. Solley, 31 Hun, Wend. 505. 17; 4 Civ. Proc. Rep. 250; 66 How. In the case last cited the court 147; afifd., 95 N. Y. 242. said: " It is sufficient that the par- 61. Buel v. Dewey, 22 How. 342. ties have selected these arbitrators, 62. Ensign v. St. Louis & San and concluded their agreement to Francisco Ry. Co., 62 How. 123. submit to them. It is this agree- 63. Jacoby v. Johnston, i Hun, ment which withdraws the cause 242. UMPIRE OR ADDITIONAL ARBITRATOR. 29I " the action " to arbitration after an appeal has been taken operates as a discontinuance of the appeal and all proceed- ings in the action, *'^ even though the submission is never acted upon.*5 Where parties agreed to submit to a referee such items of their mutual account as they could not agree upon — the referee not to be bound by legal rules of evidence, but to satisfy himself as to the justice of the claims, and any sums allowed by him to be added to or deducted from the balance as agreed upon by the parties — the stipulation by its terms was not to be an arbitration, it was held that it was a conditional submission to arbitration;*^ and in an action re- ferable under the statute providing for three referees, a refer- ence was made to two with power in them to choose an um- pire, it was held to be a mere arbitration.*^ § 156. Umpire or additional arbitrator. — Where a submis- sion is made as prescribed in this title, an additional arbi- trator or an umpire cannot be selected or appointed, unless the submission expressly so provides. Where a submission, made either as prescribed in this title or otherwise, provides that two or more arbitrators, therein designated, may select or appoint a person as an additional arbitrator or as an um- pire, the selection or appointment must be in writing. An additional arbitrator or umpire must sit with the original arbitrators upon the hearing. If testimony has been taken 64. Grosvenor v. Hunt, 11 How. 65. Baldwin v. Barrett, 4 Hun, 355; Van Slyke v. Lattice, 6 Hill, 119. 610. In the latter case the court 66. Merritt v. Thompson, 27 N. said: " These parties intended to Y. 225. blot out and end the suit at lam, 67. Dodge v. Waterbury, 8 Cow. from its commencement before the 136. See Jones v. Cuyler, 16 Barb, justice to its termination in the 576, as to effect of stipulation of Common Pleas, by the substituted attorneys for additional referees, arrangement to arbitrate." not appointed by order of the court. 292 LAW AND PRACTICE AS TO ARBITRATIONS. before his selection or appointment, the matter must be re- heard, unless a rehearing is waived in the submission, or by the subsequent written consent of the parties, or their at- torneys/^ Where the method of choosing the umpire is not prescribed in the submission agreement, it is necessary to follow the statute which requires the appointment to be in writing/' In a common-law arbitration, an umpire may be appointed by parol, unless it is otherwise expressly stipu- lated/" Where an umpire is selected, it is necessary that the matter be reheard before him,'" and an award by an um- pire wthout hearing the cause anew is invalid.''^ Such re- hearing must be on notice or the award will be void.''^ Arbi- trators authorized to name an umpire should do so before proceeding to a consideration of the subject.'"* The require- ment that an additional arbitrator or umpire must sit with the arbitrators originally named, and, if testimony has been taken, the case must be reheard, unless expressly waived, applies only to arbitrations under the Code.''^ § 157. Provisions of the statute, how far applicable. — The provisions of the Code of Civil Procedure relating to arbi- trations do not affect any right of action in affirmance, dis- affirmance, or for the modification of a submission, made 68. Code of Civ. Proc, § 2367. 117; Day v. Hammond, 57 N. Y. 69. Matter of Greening, 74 Hun, 479. 62; 56 St. Repr. 196; 26 N. Y. Supp. 73. Matter of Martin, i How. 117. In this case the umpire was (N. S.) 28; Linde v. Republic Fire selected "by lot," which was held Ins. Co., 50 N. Y. Super. 362; Day presumptive that the selection was v. Hammond, 57 N. Y. 479. in some irregular or unjustifiable 74. Van Cortlandt v. Underbill, manner, so as to vitiate the award. 17 Johns. 405; Butler v. Mayor, I 70. Elmendorf v. Harris, 5 Wend. Hill, 489; McKinstry v. Solomons, 516. 2 Johns. 56; afTd., 13 Johns. 26. 71. Code of Civ. Proc, § 2367. 75. Enright v. Montauk Fire Ins. 72. Matter of Greening, 74 Hun, Co., 15 N. Y. Supp. 893. 62; 56 St. Repr. 196; 26 N. Y. Supp. PRONaSIONS OF THE STATUTE; THEIR EFFECT. 293 either as prescribed in this title or otherwise, or upon an instrument collateral thereto, or upon an award made or purporting to be made in pursuance thereof. And, except as otherwise expressly prescribed therein, such provisions of the Code do not affect a submission, made otherwise than as prescribed therein, or any proceedings taken pursuant to such a submission, or any instrument collateral thereto. ^^ A court of equity cannot compel specific performance of an agreement to arbitrate," and a statute making arbi- tration compulsory is held unconstitutional, as depriving a party of trial by jury.^^ It is sometimes difficult to deter- mine the full force and effect of the agreement of arbitra- tion. Often the question to be determined is, whether a clause in the agreement comes within the rule which nullifies contracts ousting courts of jurisdiction, or within another and equally well-established rule, that parties may covenant that no right of action shall accrue until a third person has performed specific acts or determined certain differences between them. The line of demarcation between the two classes of cases is clear and distinct. The difficulty, if any, lies in the application of particular facts to a clearly defined rule. 7' In one case it is said: "The distinction between executing agreements of arbitration which oust a court of jurisdiction, and, therefore, are rejected as a bar, and those which are sustained as the sole remedy between the parties, is carefully drawn. In one class of cases the parties under- take by an independent covenant or agreement to provide for an adjustment or settlement of all disputes and differ- 76. Code of Civ. Proc, § 2386. 78. People v. Haws, 37 Barb. 440. 77. Bunnell v. Keteltas, 16 Abb. 79. National Contracting Co. v. 205; affd., 26 How. 599; Sinclaire v. Hudson River Water Power Co., Talmadge, 35 Barb. 602; Hurst v. 170 N. Y. 439. Litchfield, 39 N. Y. ^^^. 294 LAW AND PRACTICE AS TO ARBITRATIONS. ences by arbitration to the exclusion of the courts; and in the other they merely, by the same agreement which creates the liability and gives the right, qualify the right, by pro- viding that before a right of action shall accrue certain facts shall be determined or amounts or values ascertained, and this is made a condition precedent either in terms or by necessary implication." *° It is a general principle, however, that effect should be given to contracts when lawful in them- selves, according to their terms and the intent of the parties.^' 80. Seward v. City of Rochester, 81. D. & H. Coal Co. v. Penn- 109 N. Y. 168. sylvania Coal Co., 50 N. Y. 250. HEARING, NOTICE, AND ADJOURNMENT, ETC. 295 CHAPTER II. POWERS AND DUTIES OF ARBITRATORS, AND PROCEDURE. Section 158. Time for hearing; notice; adjournment, etc. 159. Oath of arbitrators and attendance of witnesses. 160. The hearing. 161. The award, and how authenticated. 162. Effect of an award. § 158. Time for hearing; notice; adjournment, etc Sub- ject to the terms of the submission, if any are specified therein, the arbitrators, selected as prescribed in this title, must ap- point a time and place for the hearing of the matters sub- mitted to them, and must cause notice thereof to be given to each of the parties. They, or a majority of them, may adjourn the hearing, from time to time, upon the applica- tion of either party, for good cause shown, or upon their own motion, but not beyond the day fixed in the submission for rendering their award, unless the time so fixed is ex- tended by the written consent of the parties to the submis- sion, or their attorneys.' The notice of the hearing and the production of evidence may be waived by the parties, and in the absence of express waiver this may be gathered from the circumstances;^ but an award made without any ap- pointment of time or place of hearing, without notice to the parties, and without their being present or having an opportunity of being heard before the arbitrators, is void.'' It is a good defense to an action upon an award, to show that the arbitrators proceeded without notice to defendant, and that they made the award before defendant had closed 1. Code of Civ. Proc, § 2368. 3. Jordan v. Hyatt, 3 Barb. 275: 2. Wiberly v. Matthews, 10 Daly, Moran v. Bogart, 3 Hun, 603; it 153; 91 N. Y. 648. Abb. (N. S.) 303. 296 LAW AND PRACTICE AS TO ARBITRATIONS. his proofs/ Each party is entitled to an opportunity to be heard in the presence of the other, and to a reasonable time in which to produce and examine his witnesses ;5 but where one of the parties to an arbitration was present when the time for the hearing was fixed, and consented thereto, but failed to avail himself of the opportunity to be heard, he was held to have waived notice of hearing and was bound by the award. ^ § 159. Oath of arbitrators and attendance of witnesses Before hearing any testimony, arbitrators selected, either as prescribed in this title or otherwise, must be sworn, by an officer designated in section 842 of this act, faithfully and fairly to hear and examine the matters in controversy, and to make a just award, according to the best of their un- derstanding; unless the oath is waived, by the written con- sent of the parties to the submission, or their attorneys.'' A 4. Garvey v. Carey, 4 Abb. (N. provided for, it would seem that no S.) 159; 35 How. 282; 30 N. y. notice was contemplated. While Super. 286. the general rule undoubtedly is that 5. Morewood v. Jewett, 25 N. Y. parties are entitled to a notice and Super. 496. hearing (Elmendorf v. Harris, 23 An award founded on statements Wend. 628), yet this rule is modi- of witnesses at a meeting at which fied where it is apparent from the one party was not present, nor agreement that no notice or hear- notified, is void. And this, irre- ing was contemplated. (Wiberly v. spective of the good faith of the Matthews, 91 N. Y. 648; Bedell v. arbitrators and of the question Kennedy, 38 Hun, 512; 109 N. Y. whether the evidence was given 158.) under oath, or reduced to writing. 7. Code of Civ. Proc, § 2369; (Knowlton v. Mickles, 29 Barb. Matter of Greening, 74 Hun, 62; 5& 465.) St. Repr. 196; 26 N. Y. Supp. 117. 6. Box v. Costello, 6 Misc. 415; The oath of an arbitrator may 27 N. Y. Supp. 293. be taken before a judge, clerk. In this case the court said: deputy clerk, or special deputy " Where the parties agree upon the clerk of a court, a notary public, evidence which shall be the basis mayor, justice of the peace, surro- of determination, and no notice is gate, special county judge, special OATH OF ARBITRATORS, ETC. 297 common-law submission to arbitration is not governed by this provision of the statute.* An award made by arbitrators without having taken the oath prescribed, before the hear- ing of any testimony, unless such oath is waived by the parties, is invahd; and such waiver must be in writing and signed by the parties or their attorneys.^ The provision requiring arbitrators to take an oath applies to all sub- missions in writing, though there is no provision for enter- ing judgment on the award." Where the parties have ap- peared and presented their claims and proofs without objection, and an award has been made thereon, such irregu- larity as the omission of the arbitrators to be sworn, the oath not having been waived by written consent, cannot be taken advantage of by either party.'' The arbitrators, selected either as prescribed in this title, or otherwise, or a majority of them, may require any per- son to attend before them as a witness; and they have, and each of them has, the same powers, with respect to all the proceedings before them, which are conferred, by the pro- visions of title second of chapter ninth of this act, upon a board, or member of a board, authorized by law to hear testimony.'^ A subpoena issued by an arbitrator is served surrogate, county clerk, deputy H- Cutter v. Cutter, 48 N. Y. county clerk, special deputy county Super. 470. See also Kelsey v. clerk, or commissioner of deeds Darrow, 22 Hun, 125. within the district in which the 12. Code of Civ. Proc, § 2370. officer is authorized to act. (Code The provisions of the statute re- of Civ. Proc, § 842.) ferred to above are as follows: 8. Britton v. Hooper, 25 Misc. " When a judge, or an arbitrator. 388; 55 N. Y. Supp. 493. referee, or other person, * * * 9. Flannery v. Sahagian, 134 N. has been heretofore or is hereafter Y. 85; 45 St. Repr. 98; revg. 34 St. expressly authorized by law, to Repr. 887; 12 N. Y. Supp. 56. hear, try, or determine a matter, 10. Day v. Hammond, 57 N. Y. or to do any other act in an official 479; Box v. Costello, 6 Misc. 415; capacity, in relation to which proof 27 N. Y. Supp. 293. may be taken, or the attendance of 298 LAW AND PRACTICE AS TO ARBITRATIONS. in the same manner and a witness is entitled to the same fee as in an action. '^ § 160. The hearing — All the arbitrators, selected as pre- scribed in this title, must meet together, and hear all the al- legations and proofs of the parties; but an award by a ma- jority of them is valid, unless the concurrence of all is ex- pressly required in the submission. Unless it is otherwise expressly provided in the submission, the award may re- quire the payment by either party of the arbitrator's fees, not exceeding the fees allowed to a like number of referees in the Supreme Court; and also their expenses.'* The hear- ing proceeds in the usual manner of a hearing before a referee; but the strict rules of evidence are not so usually observed. Each party is entitled to be heard in the presence of the other, and to reasonable time in which to produce and examine witnesses ;'5 and all parties are entitled to reasonable notice of the hearing.'* What is a reasonable notice of the time and place of hearing of a submission to arbitration must, of course, be left to the discretion of the arbitrator.'^ Wit- nesses must be sworn, and failure of the arbitrator to admin- ister an oath to a witness is sufficient ground for vacating an award. '^ If, however, the parties waive a hearing and sub- a person as a witness may be re- 14. Code of Civ. Proc, § 2371. quired; * * * 2. subpoena may 15. Morewood v. Jewett, 25 N. be issued by and under the hand of Y. Super. 496. the judge, arbitrator, referee, or 16. Jordan v. Hyatt, 3 Barb. 275; other person, * * * requiring Moran v. Bogert, 3 Hun, 603; 16 the person to attend; and also, in a Abb. (N. S.) 303; Box v. Costello, proper case, to bring with him a 6 Misc. 415; 27 N. Y. Supp. 293; book or a paper. The subpoena Collins v. Vanderbilt, 21 N. Y. must be served, as prescribed in Super. 313; Matter of Greening, 74 section 852 of this act. This sec- Hun, 62; Day v. Hammond, 57 N. tion does not apply to a matter Y. 479. arising, or an act to be done, in an 17. Elmendorf v. Harris, 23 action in a court of record. (Code Wend. 631, 632. of Civ. Proc, § 854.) 18. Matter of Greening, 74 Hun, 13. Code of Civ. Proc, § 852. 62. THE HEARING AND ARBITRATORS' AWARD. 299 mit the matter to the arbitrator upon his own personal knowledge of the transaction or personal inspection, and v.'ithout the evidence of witnesses, the award will be. valid, and neither party can attack it upon the ground that he was not heard. '5 Where a witness is once regularly sworn, that will be sufBcient even though he may be examined on dififerent matters and at dififerent times, or different hear- ing, and this rule holds good in case of an enlargement of time and the witness is examined after the extension.^" § 161. The award, and how authenticated. — The award is in the nature of a judicial proceeding, and cannot be made and published on Sunday.^' Where the time for making an award is not limited, the arbitrators may make it at any time, and it will be valid. ^^ And where arbitrators enlarge or extend the time against the wishes and objection of one of the parties, the award subsequently made is void.^^ An award by arbitrators takes effect when it is ready for de- livery.^'* As soon as arbitrators have made and delivered their award, they become functus officio; their power is at an end and they cannot thereafter rejudge the case and alter their award.^^ An opinion written by an arbitrator, how- ever, is not to be deemed an award.^^ 19. Wiberly v. Matthews, 91 N. St. Repr. 596; affg. 16 St. Repr. Y. 648; Bedell v. Kennedy, 109 N. 698; 15 Daly, 15; 15 Civ. Proc. Rep. Y. 153; Britton v. Hooper, 25 30; i N. Y. Supp. 442. Misc. 388. See also Cobb v. Dol- 25. Flannery v. Sahagian, 134 N. phin Mfg. Co., 108 N. Y. 463. Y. 85; 45 St. Repr. 598; revg. 34 20. Bullock V. Koon, 9 Cow. 30; St. Repr. 887; 12 N. Y. Supp. 56; 4 Wend. 531. Dake v. James, 4 N. Y. 567; Fal- 21. Story V. Elliot, 8 Cow. 27. Ion v.. Kelehar, 16 Hun, 266; Beach 22. Nichols v. Rensselaer County v. Sterne, 67 Hun, 341; 51 St. Repr. M. Ins. Co., 22 Wend. 126. 819; 22 N. Y. Supp. 330. 23. Cole V. Blunt, 15 N. Y. Super. 26. Beach v. Sterne, 67 Hun, 341; 116. 51 St. Repr. 819; 22 N. Y. Supp. 24. New York Lumber & W. W. 330. Co. V. Schneider, 119 N. Y. 475; 29 300 LAW AND PRACTICE AS TO ARBITRATIONS. Arbitrators have power, as an incident to their authority, to award costs to the successful party, and it is not essen- tial that authority therefor should be conferred by the agree- ment of submission/7 Costs cannot be had unless expressly awarded, or the submission expressly provides for them.^* To entitle the award to be enforced, as prescribed in this title, it must be in writing; and, within the time limited in the submission, if any, subscribed by the arbitrators making it; acknowledged or proved, and certified, in like manner as a deed to be recorded; and either filed in the office of the clerk of the court, in which, by the submission, judgment is authorized to be entered upon the award, or delivered to one of the parties, or his attorney/' This provision of the statute does not apply to common-law arbitrations; it refers exclusively to arbitrations under the Code. 3° Judgment can- not be entered upon an award not acknowledged, proved, or certified according to the requirements of the provisions of the statute, and if judgment is entered upon an award not 27. New York Lumber & W. W. Where the arbitration is a com- Co. V. Schneider, 119 N. Y. 475; 29 mon-law arbitration and the method St. Repr. 596; affg. 16 St. Repr. adopted is informal, and the award 698; IS Daly, 15; IS Civ. Proc. Rep. is never confirmed, nor any judg- 30; I N. Y. Supp. 442. See also ment entered thereon, such arbi- Strang v. Ferguson, 14 Johns. 161 ; tration may yet be good at com- Cox V. Jagger, 2 Cow. 638; Nichols mon law; and, if so, an award V. Rensselaer County Mut. Ins. Co., between the parties has the same 22 Wend. I2S. force and effect as a final judgment 28. Akely v. Akely, 17 How. 21. in regard to all matters within the 29. Code of Civ. Proc, § 2372. scope of the submission. (Burhans 30. New York Lumber & W. W. v. Union Free School District, 24 Co. V. Schneider, 16 St. Repr. 698; App. Div. 432; 82 St. Repr. [48 IS Daly, 15; IS Civ. Proc. Rep. 30; N. Y. Supp.l 702; affd,, 165 N. Y. I N. Y. Supp. 442; affd., 119 N. Y. 661; Wheeler v. Van Houten, 12 47S; 29 St. Repr. 596. Johns. 311; Coleman v. Wade, 6 AWARD OF arbitrators; ITS EFFECT. 3OI SO authenticated, it may be set aside. ^' Failure to properly acknowledge and prove an award, as required by the statute, ■does not rob it of its character of an award, if executed and delivered by the arbitrators as an award; and, although it •cannot form the basis of a valid judgment, it deprives them of the power to make a subsequent award.^^ § 162. Effect of an award. — A valid award is as conclusive, and has all the binding effect as a judgment, and is a bar to a suit for the original cause of action ;33 and this extends to all matters to which the submission extends, whether laid before the arbitrators or not,^'* even though the award has not been performed. ^^ When the submission is general, of all demands which either party has against the other, the award is a bar to any demand or cause of action existing at the time of the submission.^^ An award does not bind those not parties to it,''' but it is binding upon subsequent pur- chasers of property affected by it.^^ Although the terms of a submission may be sufficiently broad to render a particular N. Y. 44; New York Lumber & W. Houten, 12 Johns. 311; Fidler v. W. Co. V. Schneider, 16 St. Repr. Cooper, 19 Wend. 285; Wells v. 698; I N. Y. Supp. 442; IS Daly, 15; Lain, 15 Wend. 99; Diedrick v. IS Civ. Proc. Rep. 30; affd., 119 Richley, 2 Hill, 272; Wiberly v. N. Y. 47s; 29 St. Repr. S96.) Matthews, 91 N. Y. 698; Coleman 31. Matter of Greening, 74 Hun, v. Wade, 6 N. Y. 44. 67; 56 St. Repr. 200. 34. Fidler v. Cooper, 19 Wend. 32. Flannery v. Sahagian, 134 N. 285. Y. 87. 33. Brazill v. Isham, 12 N, Y. 9. 33. Burhans v. Union Free 36. Wheeler v. Van Houten, 12 School Dist., 24 App. Div. 429; 48 Johns. 311; Taylor v. Remington, N. Y. Supp. 702; Lowenstein v. si N. Y. 663. Mcintosh, 37 Barb. 2Si; Cox v. 37. Wyatt v. Benson, 23 Barb. Jagger, 2 Cow. 638; Morss v. Os- 327; 4 Abb. Pr. 182. torn, 64Barb. S43; Shepard v. Wat- 38. Taylor v. Remington, si N. son, 3 Cai. 166; Wheeler v. Van Y. 663. 302 LAW AND PRACTICE AS TO ARBITRATIONS. claim the proper subject of trial, yet if the award does not on its face appear to include any adjudication thereon, evi- dence is admissible to show that proof of such claim was not heard, but was in fact excluded by the arbitrators, and the award will not conclude the parties with respect to such claim. 39 Although an award by arbitrators cannot operate as a conveyance of land it is effectual by concluding a party from disputing title,*" and the party in whose favor it is may recover in ejectment."' An award on the claim of a legatee, against an executor, was held binding upon the accounting.*^ An award made against the estate of a deceased person, un- der a submission made by his personal representatives, as- certains and liquidates the claim, but gives no priority over other claims.''^ Where an award is claimed as a defense to an action, it must be pleaded as such, and cannot be shown under a general denial."* 39. Morss v. Osborn, 64 Barb. 42. Valentine v. Valentine, 2 543. Barb. Ch. 430. 40. Cox V. Jagger, 2 Cow. 638; 43. Wood v. Tunnicliff, 74 N. Y. Shepard v. Ryers, 15 Johns. 497. 38. 41. Robertson v. McNeil, 12 44. Brazill v. Isham, 12 N. Y. 9. Wend. 578; Sellick v. Adams, 15 Johns. 197. MOTION TO CONFIRM AWARD, ETC. 3O3 CHAPTER III. MOTION TO CONFIRM, VACATE, HODIFY, OR CORRECT AWARD. Section 163. Motion to confirm award. 164. Motion to vacate award. 165. Motion to modify or correct award. 166. When motion to be made; costs. § 163. Motion to confirm award. — At any time within one year after the award is made, as prescribed in the last sec- tion, any party to the submission may apply to the court, specified in the submission, for an order confirming the award; and thereupon the court must grant such an order, unless the award is vacated, modified, or corrected, as pre- scribed in the next two sections. Notice of the motion must be served, upon the adverse party to the submission, or his attorney, as prescribed by law for service of notice of a motion upon an attorney in an action in the same court. In the Supreme Court, the motion must be made within the judicial district, embracing the county where the judgment is to be entered.' It will be noted that this sec- tion of the statute provides that unless the award is vacated, modified, or corrected, the court must grant the order of confirmation. There can be no confirmation of the award unless it is properly authenticated. In other words, the provisions of the statute must be strictly complied with.^ Service of a copy of the award may be waived. ^^ § 164. Motion to vacate award. — In either of the follow- ing cases, the court, specified in the submission, must make 1. Code of Civ. Proc, § 2373. Ocean House Corporation v. Chip- 2. Goodsell v. Phillips, 49 Barb, per, 5 Hun, 419. 353; 3 Abb. (N. S.) 147; Hallen- 2a. Gidley v. Gidley, 65 N. Y. beck V. Fleming, 6 Hill, 303; 170. 304 LAW AND PRACTICE AS TO ARBITRATIONS. an order vacating the award, upon the appUcation of either party to the submission: 1. Where the award was procured by corruption, fraud, or other undue means. 2. Where there was evident partiahty or corruption in the arbitrators, or either of them. 3. Where the arbitrators were guilty of misconduct, in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence, pertinent and mate- rial to the controversy; or of any other misbehavior, by which the rights of any party have been prejudiced. 4. Where the arbitrators exceeded their powers, or so im- perfectly executed them, that a mutual, final, and definite award, upon the subject-matter submitted, was not made. Where an award is vacated, and the time within which the submission requires the award to be made, has not expired, the court may, in its discretion, direct a rehearing by the arbitrators. ^ On a motion to vacate an award of arbitrators, the court is not confined to an examination of the submission and award, but may receive affidavits as to what took place at the hear- ing, to show that the arbitrators exceeded their powers, or that the award was not final.* Excess of power means want of jurisdiction.' " Misconduct " and " misbehavior " refer to an intent to do wrong.^ It is a general rule that awards of arbitrators are to be liberally construed to uphold them;'' and 3. Code of Civ. Proc, § 2374. 7. Purdy v. Delavan, i Cai. 304; 4. Matter of Williams, 4 Den. Jackson v. Ambler, 14 Johns. 96; 194; Briggs V. Smith, 20 Barb. 409; Fudicar v. Guardian Mut. Life Ins. Butler V. Mayor of New York, 7 Co., 62 N. Y. 392; afTg. 37 N. Y. Hill, 329. Super. 358; afifg. 45 How. 462; New 5. Emmet v. Hoyt, 17 Wend. York Lumber & W. W. Co. v. 410. Schneider, 16 St. Repr. 698; I N. Y. 6. Smith V. Cutler, 10 Wend. 589. Supp. 442; 15 Daly, 15; 15 Civ. VACATING THE AWARD. 305 when all the proofs and proceedings, taken and had before an arbitrator, are not put in evidence in an action to set aside the award, the court will presume that the facts neces- sary to sustain his rulings were established before him.* The award cannot be assailed because of error, honestly •committed, either of law or fact; fraud or misconduct must be shown,' or, a mistake of law or fact, in the nature of a clerical error; and this must appear upon the face of the award or in some paper delivered with it.'° The construc- tion of the submission, by the arbitrators, is not conclusive; the court may determine whether they have exceeded their jurisdiction and powers, or have refused to exercise them." An award cannot be impeached by showing that the arbi- trators erred in receiving testimony;" but any violation of Proc. Rep. 30; affd., 119 N. Y. 475; 29 St. Repr. 596; Hiscock v. Har- ris, 74 N. Y. 108. 8. Fudickar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392; affg. jp N. Y. Super. 358; affg. 45 How. 462. 9. Hoffman v. De Graaf, 109 N. Y. 638; affg. 39 Hun, 648; Phillips V. Rouss, 7 St. Repr. 378; affd., 118 N. Y. 680; 28 St. Repr. 982; Masury v. Whiton, ill N. Y. 679; 19 St. Repr. 141; affg. 6 St. Repr. 697; Matter of Roosevelt v. Nichols, 6 Week. Dig. 437; McGregor v. Spratt, 35 St. Repr. 907; Perkins v. ■Giles, so N. Y. 228; affg. 53 Barb. 342; De Castro v. Brett, 56 How. 484; Wilkins v. Allen, 48 App. Div. 433; 62 N. Y. Supp. 1068; 169 N. Y. 494- 10. Morris Run Coal Co. v. Salt Co. of Onondaga, 58 N. Y. 667; Merritt v. Thompson, 27 N. Y. 225. See also Herrick v. Blair, i Johns. Ch. loi; Shepard v. Merrill, 2 Johns. Ch. 276; Todd v. Barlow, 2 Johns. Ch. ssi; Perkins v. Wing, 10 Johns. 142; Sweet v. Morrison, 116 N. Y. 19, 33. An award of an arbitrator can be attacked only on the grounds stated in the Code of Civil Procedure (§§ 2374, 2375), and the merits can- not be reinvestigated. Where the arbitrator has honestly decided the case and consistently with the legal principles which he adopted and believed to be the law, equity can- not review his award for alleged mistakes of law. (Dobson v. Central R. R. of New Jersey, 38 Misc. 582.) 11. Halstead v. Seaman, 82 N. Y. 27. 12. Viele v. Troy & Boston R. R. Co., 21 Barb. 381; Campbell v. Western, 3 Paige, 124; Newton v. Armstrong, 19 N. Y. Supp. 573. 20 306 LAW AND PRACTICE AS TO ARBITRATIONS. natural justice, such as receiving material testimony from one of the parties, without the knowledge or consent of the other, should be condemned. '^ On the other hand, the refusal of an arbitrator to hear testimony which is pertinent and material is sufficient misconduct to authorize the setting aside of the award.'* An award should be definite and certain, so as to show what each party is to do, and enable each to enforce it.'' An award is sufficiently certain, although it requires a calcula- tion, if the basis for the calculation is given, '^ but an award that a contractor " is entitled to his full bill, after deducting the bills paid him," by persons named, is void for uncer- tainty;'' and an award that a party should pay a sum named, less what has been paid, without stating what has been paid, or furnishing means for determining it, is void.'* The award of arbitrators must be confined strictly to mat- ters submitted. If they exceed that limit, their award will generally be void.'^ It must embrace all matters submitted, else it is void.^° An award cannot be opened upon the simple allegation of the discovery of a receipt, unless under very special circumstances, and satisfactory proof, showing due 13. Fudicar v. Guardian Mut. naers, 137 N. Y. 290; 50 St. Repr. Life Ins. Co., 62 N. Y. 392; affg. 687; affg. 43 St. Repr. 54; 62 Hun, 37 N. Y. Super. 358; affg. 45 How. 568; 17 N. Y. Supp. 58. 462. 19. Dodds V. Hakes, 114 N. Y. 14. Halstead v. Seaman, 82 N. Y. 260; 23 St. Repr. 192; Haggart v. 27; Van Cortlandt v. Underhill, 17 Morgan, 5 N. Y. 422; affg. 6 N. Y. Johns. 405; revg. 2 Johns. Ch. 339. Super. (4 Sandf.) 198; Borrow v. 15. Schuyler v. Van lier Veer, 2 Milbank, 5 Abb. 28; 6 Duer, 680; Cai. 23s; Perkins v. Giles, 53 Barb. Briggs v. Smith, 20 Barb. 409. 342; affd., so N. Y. 228. 20. Wright v. Wright, 5 Cow. 16. Ludlow V. Grozart, 3 Johns. 197; Moore v. Cockcroft, 4 Duer, Cas. 534; Case v. Ferris, 2 Hill, 75. 133; Jones v. Welwood, 71 N. Y. 17. Fallon v. Kelehar, 16 Hun, 208; affg. 9 Hun, 166; Merritt v. 266. Thompson, 27 N. Y. 225; Backus v. 18. Waite v. Barry, 12 Wend. Fobes, 20 N. Y. 204. 377. See also Herbst v. Hage- MOTION TO MODIFY OR CORRECT AWARD. 307 efforts to discover the receipt before the hearing, and its discovery since the award.^' Where the award is for a large amount, the court will not set it aside as against the weight of evidence in a case where it would not interfere with the verdict of a jury.^^ An awa'rd, good in part and bad in part, is wholly void, if the parts are dependent ;^3 but where the award is divisible, the parties are bound by the part that is good/* Where an award is void as to the one act a party is required to do, as consideration for the act required of the other party, the whole is void.^s Where an award has been declared void in a proper proceeding and by a competent court, it cannot be considered as an adjudication nor operate as a defense.^^a § 165. Motion to modify or correct award. — In either of the following cases, the court, specified in the submission, must make an order modifying or correcting the award, upon the application of either party to the submission: 1. Where there was an evident miscalculation of figures, or an evident mistake in the description of any person, thing, or property, referred to in the award. 2. Where the arbitrators have awarded upon a matter not submitted to them, not affecting the merits of the decision upon the matters submitted. 31. Todd V. Barlow, 2 Johns. Ch. Johns. 264; Cox v. Jagger, 2 Cow. 551; Sweet V. Morrison, 116 N. Y. 638; Jackson v. Ambler, 14 Johns. 19, 33. g6; Harrington v. Higham, 15 22. Wood V. Auburn & Rochester Barb. 524; Bacon v. Wilber, i Cow. R. R. Co., 8 N. Y. 160. 117; Doke v. James, 4 N. Y. 567; 23. Schuyler v. Van Der Veer, Stanley v. Chappell, 8 Cow. 235. 2 Cai. 235. 25. Brown v. Hankerson, 3 Cow. 24. Steinerville & Bloomington 70; Nichols v. Rensselaer Co. Mut. Stone Co. V. White, 32 Misc. 135; Ins. Co., 22 Wend. 125. 6s N. Y. Supp. 609; Keep v. Keep, 25a. Harris v. Hiscock, 14 17 Hun, 152; Locke v. Filley, 14 Week. Dig. 219; 91 N. Y. 340. Hun, 139; Martin v. Willrams, 13 308 LAW AND PRACTICE AS TO ARBITRATIONS. 3. Where the award is imperfect in a matter of form, not affecting the merits of the controversy, and if it had been a referee's report, the defect could have been amended or dis- regarded by the court. The order may modify or correct the award, so as to effect the intent thereof, and promote justice between the parties.^' It is not the province nor within the power of the court to direct arbitrators how they shall consider or decide a case before them,^^ but it may correct a clerical mistake and decree a performance.^^ As a rule, however, an award will be set aside for mistake of fact in the matter of a clerical error.^9 § 166. When motion to be made; costs. — Notice of mo- tion to vacate, modify, or correct an award, must be served upon the adverse party to the submission, or his attorney, within three months after the award is filed or delivered, as prescribed by law for service of notice of motion upon an at- torney in an action. For the purposes of the motion, any judge, who might make an order to stay the proceedings, in an action brought in the same court, may make an order, to be served with the notice of motion, staying the proceed- ings of adverse party to enforce the award.-' The motion must be based upon affidavits, 3° and where a motion to va- cate an award is based upon the wrongful and improper be- havior of the arbitrators, it may be made upon an affidavit of one of the arbitrators who refused to sign the award be- cause he considered the conduct of the other arbitrators 26. Code of Civ. Proc, § 2375. 29. Code of Civ. Proc, § 2376. 27. Livingston v. Sage, 95 N. Y. 30. Poole v. Jolinston, 32 Hun, 289. 215- 28. Bouck V. Wilber, 4 Johns. Ch. 405. WHEN MOTIONS TO BE MADE. 3O9 illegal and unfair.^' Where the objection to the award is de- pendent upon the first, second, and third subdivisions of section 2374 of the Code, affidavits are necessary to estab- lish the facts upon which the motion is destined to be pre- sented. And either of the grounds, upon the authority so given to vacate the award, must be regularly and completely shown by affidavits.^^ Where the court vacates an award, costs, not exceeding twenty-five dollars and disbursements, may be awarded to the prevailing party; and the payment thereof may be en- forced, in like manner as the payment of costs upon a motion in an action.^^ 31. National Bank of Republic v. 32. Poole v. Johnston, 32 Hun, Darragh, 30 Hun, 29; 17 Week. 215. Dig. 290. 33. Code of Civ. Proc, § 2377. 310 LAW AND PRACTICE AS TO ARBITRATIONS. CHAPTER IV. JUDGMENT AND REVIEW THEREOF. Section 167. Judgment on the award; costs. 168. Effect of judgment and its enforcement. 169. Judgment, how reviewed. § 167. Judgment on the award ; costs — Upon the grant- ing of an order, confirming, modifying, or correcting an award, judgment may be entered in conformity therewith, as upon a referee's report in an action, except as is otherwise prescribed in this title. Costs of the application, and of the proceedings subsequent thereto, not exceeding twenty-five dollars and disbursements, may be awarded by the court, in its discretion. If awarded, the amount thereof must be in- cluded in the judgment.' Where an award is not acknowl- edged or proved, as required by the statute, a judgment can- not be entered upon it.^ An action may be maintained upon the award, notwithstanding the provision of the statute for entry of judgment, and the right of action is not suspended until a term of court succeeding the award. The statute is cumulative, not exclusive, and the right of action still re- mains. ^ Where the court has confirmed the award, proceed- ings under it may be enjoined, if the award was of matter not the subject of arbitration." Interest upon an award does not begin until the entry of judgment.^ The judgment-roll is made up by the clerk who must 1. Code of Civ. Proc, § 2378. 4. Wyatt v. Benson, 23 Barb. 2. Matter of Greening, 74 Hun, 327; 4 Abb. Pr. 182. 62; 56 St. Repr. 196; 26 N. Y. 5. Matter of Trustees of New Supp. 117; Flannery v. Sahagian, York & Brooklyn Bridge, 45 St. 134 N. Y. 84, 87. Repr. 615. 3. Burnside v. Whitney, 24 Barb. 632; affd., 21 N. Y. 148. JUDGMENT ON AWARD; ITS ENFORCEMENT. 3II attach together and file the following papers, which consti- tute the judgment-roll: 1. The submission; the selection or appointment, if any, of an additional arbitrator, or umpire; and each written ex- tension of the time, if any, within which to make the award. 2. The award. 3. Each notice, affidavit, or other paper, used upon an ap- plication to confirm, modify, or correct the award, and a copy of each order of the court, upon such an application. 4. A copy of the judgment. The judgment may be docketed, as if it was rendered in an action.* § 168. Effect of judgment and its enforcement The judg- ment so entered has the same force and effect, in all respects, as, and is subject to all the provisions of law relating to, a judgment in an action; and it may be enforced, as if it had been rendered in an action in the court in which it is entered.-' A party who treated the award as regular, and admitted a compliance with it and proceeded with some of its require- ments cannot avoid it by setting up irregularities in the procedure.^ § 169. Judgment, how reviewed. — An appeal may be taken from an order vacating an award, or from a judgment entered upon an award, as from an order or judgment in an action. The proceedings upon such an appeal, including the judgment thereupon, and the enforcement of the judgment, are governed by the provisions of chapter twelfth of the Code of Civil Procedure, as far as they are applicable.' An ap- 6. Code of Civ. Proc, § 2379. 8. Terry v. Moore, 22 N. Y. 7. Code of Civ. Proc, § 2380. Supp. 785; 3 Misc. 285. 9- Code of Civ. Proc, § 2381. 312 LAW AND PRACTICE AS TO ARBITRATIONS. peal from the award of an arbitrator, to whom questions of law were stibmitted on an agreed statement of facts, presents for review only such questions as would be raised by a motion to vacate, modify, or correct an award, and does not bring up for review the question as to the correction of the award on the merits; and where no motion is made to vacate, modify, or correct any defect, the award is not reviewable.'" Under the Code, it is held that a proceedings to vacate, modify, or correct an award of arbitrators is a special proceeding, and an appeal may be taken from the order entered in such proceeding. An appeal from an order confirming the award and from the judgment entered thereon must be heard upon the same papers as were be- fore the court at the time when the order was made and the judgment directed, from which the appeal is taken. A case forms no part of these papers, and none can regularly be proposed or served, in any proceeding taken to make or review an application concerning an award.'' 10. Wilkins v. Allen, 169 N. Y. also, under former statute, Dibble 494; 62 N. E. Repr. 575; affg. 48 v. Camp, 10 Abb. (N. S.) 92; 60 App. Div. 433; 62 N. Y. Supp. Barb. 150; Ketcham v. Woodruff, 1068. 24 Barb. 147; Hallenbeck v. Flem- 11. Poole V. Johnston, 32 Hun, ing, 6 Hill, 303; Wilson v. Williams, 215; 5 Civ. Proc. Rep. 279. See 66 Barb. 209. REVOCATION OF AWARD, WHEN ALLOWED. 3 1 J, CHAPTER V. REVOCATION OF AWARD AND DEATH OF PARTY. Section 170. When and how revocation allowed. 171- Liability of party who revokes. 172. Effect of death of party. § 1 70. When and how revocation allowed. — A submission to arbitration, made either as prescribed by the Code of Civil Procedure or otherwise, cannot be revoked by either party, after the allegations and proofs of the parties have been closed, and the matter finally submitted to the arbi- trators for their decision. A revocation, when allowed, must be made by an instrument in writing, signed by the revoking party, or his authorized agent, and delivered to the arbi- trators, or one of them; and it is not necessary, in any case, that the instrument of revocation should be under seal. Any- party to a submission may thus revoke it; whether he is a sole party to the controversy, or one of two or more parties on the same side.' Both at common law and under the Code„ a submission to arbitration may be revoked by any party thereto at any time before the matter has been finally sub- mitted to the arbitrators for their decision; and this is so al- though the agreement to arbitrate provides against any revo- cation, and, by its terms, the party seeking to revoke, for a valuable and executed consideration, expressly waived and abandoned the right to revoke. Such stipulations, like other executory agreements, if broken, simply leave the other party to seek redress by action for damages.' When the agree- 1. Code of Civ. Proc, § 2383. 166; affg. 13 Civ. Proc. Rep. 301; 2. People ex rel. U. Ins. Co. v. New York Lumber & W. W. Co. Nash, III N. Y. 310; 19 St. Repr. v. Schneider, 119 N. Y. 475; 29 St. 75; affg. 47 Hun, 542; 15 St. Repr. Repr. 596; affg. 16 St. Repr. 698; I 314 LAW AND PRACTICE AS TO ARBITRATIONS. ment for arbitration, while yet executory, is broken by the refusal of a party to be bound by, or to perform it, the power of the arbitrators ceases.^ The efifect of such withdrawal is to terminate the arbitration and to remit the parties to their rights, as they stood before entering into the agree- ment.'* The commencement of a suit does not efifect a revo- cation of a submission. 5 Whatever takes away the arbitra- tor's right to proceed is effectual as a revocation.^ § 171. Liability of party who revokes — Where a party ex- pressly revokes a submission, made either as prescribed by the Code or otherwise, any other party to the submission may maintain an action against him, and also against his sureties, if any, upon the submission, or any instrument col- lateral thereto, in which action the plaintifif may recover all the costs and other expenses, and all the damages, which he has incurred in preparing for the arbitration, and in con- ducting the proceedings to the time of the revocation. Either of the arbitrators may recover, in an action against the revoking party, his reasonable fees and expenses.' This provision of the statute creates, against one who re- vokes an agreement to arbitrate, an impHed contract to pay his adversary the costs, expenses, and damages previously incurred by reason of the breach of the contract;* and if a deposit is made as security for any award, such expenses are payable out of the deposit.' N. Y. Supp. 442; IS Daly, 15; 15 Civ. Civ. Proc. Rep. 30; affd., 119 N. Y. Proc. Rep. 30. 475; 29 St. Repr. 596. 3. People ex rel. U. Ins. Co. v. 6. Crofoot v. Allen, 2 Wend. 494. Nash, III N. Y. 310; 19 St. Repr. 7. Code of Civ. Proc, § 2384. 75. 8. Kent v. Crouse, 5 St. Repr. 4. Schepp V. Manley, 59 Hun, 141; Wiley v. Goodsell, 3 App. Div. 440; 36 St. Repr. 991. 452; 74 St. Repr. 32; 38 N. Y. 5. New York Lumber & W. W. Supp. 376. Co. V. Schneider, 16 St. Repr. 698; 9- Union Ins. Co. v. Central I N. Y. Supp. 442; IS Daly, 15; is Trust Co., 87 Hun, 141; 32 N. Y. DEATH OF party; EFFECT ON AWARD. 3I5 It is further provided by statute that a sum, penalty, for- feiture, or damages, shall not be recovered, for a revoca- tion of a submission to arbitration, made either as prescribed by the Code, or otherwise, except as prescribed in section 2384 thereof; notwithstanding any stipulated damages, pen- alty, or forfeiture, expressed in the submission, or in any instrument collateral thereto.'" § 172. Effect of death of a party. — The death of a party to a submission, made either as prescribed by the Code or other- wise, or the appointment of a committee of the person or property of such a party, as prescribed in title sixth of chap- ter seventeen of the Code of Civil Procedure, operates as a revocation of the submission, if it occurs before the award is filed or delivered, but not afterward. Where a party dies afterward, if the submission contains a stipulation, authoriz- ing the entry of a judgment upon the award, the award may be confirmed, vacated, modified, or corrected, upon the ap- plication of, or upon notice to, his executor or administrator, or a temporary administrator of his estate; or where it re- lates to real property, his heir or devisee, who has succeeded to his interest in the real property. Where a committee of the property, or of the person, of a party, is appointed, after the award is filed or delivered, the award may be confirmed, vacated, modified, or corrected, upon the application of, or notice to, a committee of the property, but not otherwise. In a case specified in this section, a judge of the court may make an order, extending the time within which notice of a motion to vacate, modify, or correct the award, must be served. Upon confirming an award, where a party has died Supp. 858; 24 Civ. Proc. Rep. 220; 671. See also S. C, 13 N. Y. Supp. affd., 157 N. Y. 633; 52 N. E. Repr. 17; 36 St. Repr. 435. 10. Code of Civ. Proc, § 2385. 3l6 LAW AND PRACTICE AS TO ARBITRATIONS. since it was filed or delivered, the court must enter judg- ment in the name of the original party; and the proceedings thereupon are the same as where a party dies after a ver- dict." The death of one of the parties to an arbitration and of one of the arbitrators also, clearly operates as a revocation of the arbitration." II- Code of Civ. Proc, I 2382. 12. Harris v. Hiscock, 14 Week. Dig. 219; 91 N. Y. 340. TITLE VI. REFEREES' AND ARBITRATORS' FEES. Chapter I. Referees' and Arbitrators' Fees (§§ 173-176). CHAPTER I. REFEREES' AND ARBITRATORS' FEES. Section 173. Fees in references generally. 174. Fees on sales of real property. 175. Fees of arbitrators. 176. Schedule of referee's fees. 177. Referee's fees on sales of real property. § 173. Fees in references generally. — The statute provides that " a referee, in an action or a special proceeding, brought in a court of record, taken as prescribed in title twelve of chapter seventeen of this act, is entitled to ten dollars for each day spent in the business of the reference; unless at or before the commencement of the trial or hearing, a different rate of compensation is fixed, by the consent of the parties other than those in default for failure to appear or plead, manifested by an entry in the minutes of the referee, or otherwise in writing, or a smaller compensation as fixed by the court or judge, in the order appointing him." ' Under this provision of the law, the fact that the hearing was pro- tracted and held at unusual hours, does not entitle the referee to more than ten dollars per day, in the absence of a stipu- lation;^ and where three cases were before the referee, in all of which the plaintiff was the same, and a stipulation was Tnade that " the evidence is to be taken as in one case " and " that the referee may fix his own fees," the referee cannot charge ten dollars per day for each day spent in all the cases 1. Code of Civ. Proc, § 3296. 2. Matter of Bieber, 36 Misc. 341; 73 N. Y. Supp. 552. 317 3l8 LAW AND PRACTICE AS TO REFERENCES. as fees in each case, but can only charge one-third of that amount. 3 The attorneys for the parties to an action are authorized to stipulate as to referee's fees, and such stipu- lation is " the consent of the parties * * * in writing; " * and where a stipulation has been acted upon by the referee, and the fees so fixed have been paid by the successful party, the court has no power to reduce the allowance, in the ab- sence of fraud, collusion, or deceit. ^ A receiver cannot con- sent to an increase of fees of a referee, without leave of the court, and such an agreement, when authorized, must be made at or before the trial or hearing.^ A verbal stipula- tion, though made in the presence of the referee, is not suf- ficient, unless a memorandum of the agreement is entered on his minutes at the time.^ The stipulation as to referee's fees must be definite and certain as to amount; if it does not specifically fix a different rate of compensation than that prescribed, it does not change the statutory rate.* The ref- eree will not be allowed for clerk hire, stenographer's fees, printing, etc., unless distinctly agreed upon.' A charge by 3. Brown v. Sears, 23 Misc. 559; v. Day, 135 N. Y. 469; 48 St. Repr. 52 N. Y. Supp. 792. See also 469; affg. 46 St. Repr. 533; 18 N. Byrne v. Groot, 5 Law Bull. 56; Y. Supp. 791; 22 Civ. Proc. Rep. Colton V. Simmons, 14 Hun, 75. 146; Griggs v. Guinn, 29 Abb. N. 4. Mark v. City of Buffalo, 87 C. 144; 21 N. Y. Supp. 451; 23 Civ. N. Y. 184. Proc. Rep. 25; Matter of Ellis, 26 5. Mark v. City of Buffalo, 87 N. Y. Supp. 893; Matter of Hurd, N. Y. 184; Wolff V. Horn, 9 Misc. 6 Misc. 171. 100; 29 N. Y. Supp. 75. An agreement made at the be- 6. People V. Continental Life ginning of the trial that the referee Ins. Co., 15 Week. Dig. 569. may fix his fees, entered in the 7. Townsend v. Peyser, 14 Abb. stenographer's minutes, is not bind- (N. S.) 324; 4 Daly, 556; 45 How. ing or valid as being a direction 211; Brown v. Windmuller, 36 N. to the referee in a matter in which Y. Super. 75; 14 Abb. (N. S.) 359; ^^ '^ interested. (First Nat. Bank Philbin V. Patrick, 22 How. Pr. I. v. Tamajo, 77 N, Y. 476.) 8. Chase v. James, 16 Hun, 14; ^- People v. Continental Life First Nat. Bank v. Tamajo, 77 N. Ins- Co., 15 Week. Dig. 569- Y. 476; affg. 17 Hun, 240; Griggs FEES OF REFEREES GENERALLY. 319 a referee for days upon which there are adjournments is proper.'" But if the postponements are made in advance of the hearing the rule is dififerent." Excessive expenses of references are not approved by the courts/^ and whenever the court has control, only such fees as appear necessary will be allowed. '3 The affidavit in support of the claim for fees of the referee must show that the time spent by the referee "was necessarily required;'* and where there is no stipula- tion in regard to referee's fees, it is incumbent upon the suc- cessful party, upon taxation of costs, to show affirmatively that the referee was personally present and engaged in the reference, the number of day's, at the legal rate, required to make the sum charged in the bill of costs. '^ The court has no power, on a summary application by a referee, to order one of the parties to the suit to take up the referee's report and pay him his fees,'* and it must be an exceptional case in which any payment to a referee or deposit of his fees should be required in advance."' In a case where there is a fund in 10. Jones V. Newton, 33 St. 17. Ellsworth v. Brum, 16 Hun, Repr. 823; II N. Y. Supp. 510; i; 56 How. 237. Brush V. Kelsey, 47 App. Div. 270; In this case the court said: "We 62 N. Y. Supp. 214. do not here intend to hold that a II- Mead v. Tuckerman, 105 N. party may be required to pay to a Y. 557. referee his fees in advance, or that 12. Halbert v. Gibbs, 16 App. any payment for fees should be Div. 126; 45 N. Y. Supp. 113; 4 made by a party to a referee until N. Y. Annot. Cas. 232. his report or decision is signed and 13. Matter of Piati, 26 Misc. 434; ready for delivery. There may pos- 56 N. Y. Supp. 132; Brush v. Kel- sibly be cases where this would be sey, 47 App. Div. 270; 62 N. Y. admissible, but they can be of rare Supp. 557. occurrence, and, as a rule of 14. Matter of Piati, 26 Misc. 434; practice, such a precedent would be 56 N. Y. Supp. 132. reprehensible in the extreme. It 15. Watson v. Gardiner, 50 N. might lead to great abuse, and is Y. 671. suggestive of manifest impropriety. 16. Gieb v. Topping, 83 N. Y. 46; If a referee refuse to proceed on Morrow v. McMahon, 71 App. Div. the reference, he may be removed 171; 75 N. Y. Supp. 534. and another appointed in his place. 320 LAW AND PRACTICE AS TO REFERENCES. court, the court may, in its discretion, direct that the referee's fees be paid out of that fund.'* The referee may compel pay- ment of his fees, as a condition for deHvering his report,'^ and he may sue those who voluntarily attend before him.^" A referee who is guilty of misconduct is not entitled to fees.^' An unsuccessful lienor in surplus proceedings is liable for half the referee's fees.^^ The fees of a referee appointed to superintend a discovery cannot exceed twenty dollars.^^ A referee is entitled to the usual fee of ten dollars per day, on settlement of a case, to be paid by the party making the case. § 174. Fees on sales of real property — The fees of a ref- eree appointed to sell real property pursuant to a judgment So, too, on sufficient grounds, the court would, perhaps, require the deposit of money to meet the fees of the referee before he would be required to proceed; but such re- quirement would rest upon some- thing unusual and peculiar to the particular case." 18. Matter of Attorney-General V. Continental Life Ins. Co., 17 Week. Dig. 147; Matter of Hurd, 6 Misc. 171; 56 St. Repr. 694; 26 N. Y. Supp. 893; 31 Abb. N. C. 109; Matter of Merry, 11 App. Div. 597; 42 N. Y. Supp. 617. 19. Duhrkop v. White, 13 App. Div. 293; 4 N. Y. Annot. Cas. 47; 43 N. Y. Supp. 190. 20. Thompson v. Rich, 28 Misc. 26s; 59 N. Y. Supp. 819; Nealis v. Meyer, 21 Misc. 344. In this latter case it was said: "A referee or arbitrator may, by common-law action, recover compensation for his services without proving an ex- press promise to pay, for the obli- gation to compensate is implied from the beneficial nature of the services, aided by the attendance of the parties, from which their con- sent sufficiently appears." In Russell v. Lyth (66 App. Div. 293; 72 N. Y. Supp. 615) it was said: "The referee may file or de- liver his report without receiving his compensation, and resort to an action at law to obtain what he has earned. * f f The referee, rather than have the reference terminated, may prefer to file or deliver his report and trust to his common-law action for the services he has ren- dered." (See also Hinman v. Hap- good, I Den. i88; Wait's Law & Practice [7th ed.], Vol. 2, p. 58.) 21. Dickinson v. Earle, 35 Misc. 23s; 71 N. Y. Supp. 227; afltd., 63 App. Div. 134; 71 N. Y. Supp. 77s; New York Bank Note Co. v. Ham- ilton Bank Note Co., 71 App. Div. 611; 75 N. Y. Supp. 520. 23. American Mortgage Co. v. Butler, 36 Misc. 253; 73 N. Y. Supp. 334. 23. Code of Civ. Proc, § 807. • referees' fees on sales of real property. 321 in an action are the same as those allowed to a sheriff, and he is allowed the same disbursements as the sheriff. Where a referee is required to take security upon a sale, or to dis- tribute, or apply, or ascertain and report upon the distribu- tion or application of any of the proceeds of the sale, he is also entitled to one-half of the commissions upon the amount so secured, distributed, or applied, allowed by law to an executor or administrator for receiving and paying out money. But commissions shall not be allowed to him upon a sum bidden by a party, and applied upon that party's de- mand, as fixed by the judgment, without being paid to the referee, except to the amount of ten dollars. And a referee's compensation, including commissions, cannot, where the sale is under a judgment in an action to foreclose a mortgage, ex- ceed fifty dollars, unless the property sold for ten thousand dollars or upwards, in which event the referee may receive such additional compensation as to the court may seem proper, or in any other cause, five hundred dollars.^* In an action to foreclose a mortgage a referee's fees on sale are limited to fifty dollars except where the property sells for ten thousand dollars or more.^s Jn case of defects in the proceedings through which a resale may be neces- sary the referee can have no further fees, but he is entitled to his disbursements, to whatever extent they were prop- erly incurred. ^^ Where two or more mortgages are fore- closed in the same action and a sale had under one judg- ment the referee is entitled only to single fees.^'' In case 24. Code of Civ. Proc, § 3297. 26. Caryl v. Stafford, 69 Hun, 25. Code of Civ. Proc, § 3297; 318; 53 St. Repr. 426; 23 N. Y. Caryl v. Stafford, 69 Hun, 318; 53 Supp. 534; Walbridge v. James, 16 St. Repr. 426; 23 N. Y. Supp. S34; Hun, 8; 56 How. 185. Hover v. Hover, 25 Misc. 95; 54 27. Sadler v. Lyon, 21 Civ. Proc. N. Y. Supp. 693. Rep. 105; 31 N. Y. Supp. 141. 21 322 LAW AND PRACTICE AS TO REFERENCES. the judgment is paid before sale, the referee is entitled to fifty dollars, where a sheriiif's fees would have amounted to, or exceeded that sum.^^ In case the property under a fore- closure sells for more than ten thousand dollars, the referee is not entitled to more than fifty dollars as compensation unless he has actually received and accounted for ten thou- sand dollars or more in cash/^ In an action other than foreclosure, the referee's fees on a sale are the same as those allowed to a sheriff; and he is allowed the same disbursements as a sheriff, but his com- pensation cannot exceed five hundred dollars; and in case the referee is required to take security upon a sale or make distribution, etc., he is also entitled to one-half the com- missions upon the amount so secured, distributed, etc., al- lowed to an executor or administrator for receiving and pay- ing out money, and unless such amount is actually paid to the referee his commissions cannot exceed ten dollars. 3° This provision of the statute permits a referee to receive the full compensation of a sheriff and a liberal commission besides,^' and he is also entitled to receive the usual fee from the grantee for drawing and executing the deed.^^ The provisions of the statute above referred to do not affect or relate to the fees of the sheriff of the counties of New York and Kings.^s In the city and county of New 28. Lockwood v. Fox, 3 Law 30. Code of Civ. Proc, § 3297; Bull. 37; Innes v. Purcell i Hun Maher v. O'Connor, i Civ. Proc. 318; 2 T. & C. 538. Rep- 158; 61 How. 103. 29. Hosmer v. Gans, 14 Misc. 31. Race v. Gilbert, 102 N. Y. 229; 3S N. Y. Supp. 471; 70 St. 298. Repr. 169; 25 Civ. Proc. Rep. 100; 32. Code of Civ. Proc, § 33o7> Metropolitan Life Ins. Co. v. Bend- subd. 9; Race v. Gilbert, 32 Hun, heim, 59 N. Y. Supp. (93 St. Repr.) 360. 793; Dime Savings Bank of Brook- 33. Code of Civ. Proc, § 3308; lyn V. Pettit, id. 794. L. 1890, ch. 523, as amended by L. 1892, ch. 418, and L. 1897, ch. 636 FEES OF ARBITRATORS. 323 York a referee's fees upon sale in foreclosure cannot exceed fifty dollars.^* In other cases it is governed by the New- York Sherifif's Act relating to fees.^s § 175. Fees of arbitrators — The only provision of the statute relating to the fees of arbitrators may be found in the follow^ing: "Unless it is otherwise expressly provided in the submission, the award may require the payment, by either party, of the arbitrator's fees, not exceeding the fees allowed to a like number of referees in the Supreme Court; and also their expenses." ^^ The fees of arbitrators, like those of referees, are the subject of agreement or stipulation of the parties.37 An arbitrator may, by a common-law action, recover compensation for his services, without proving an express promise to pay; for the obligation to compensate is implied from the beneficial nature of the services, aided by the attendance of the parties, from which their consent suffi- ciently appears ;3^ and when there are several arbitrators, each may maintain a separate action for his compensation. The suit should not be joint. 3' Arbitrators are employed by both parties to perform the service required by the submission, at a fixed compensation, and like any other employee, he can (New York county) ; L. 1889, ch. 34. Code of Civ. Proc., § 3307, 167 (Kings county). subd. 9; L. 1890, ch. 523, as amended "All sales of real estate made in by L. 1897, ch. 636, § 17, subd. 11. the county of Kings, under a judg- 35. L. 1890 and L. 1897, last ment or decree of any court, except above. sales in actions of partition, and 36. Code of Civ. Proc, § 2371, when the sheriff of said county is a last sentence. party, and excepting where all the 37. See Wolff v. Horn, 9 Misc. parties to the suit, both those who 100; 29 N. Y. Supp. 75; Mark v. do and those who do not appear, City of Buffalo, 87 N. Y. 184. shall execute and file a written 38. Nealis v. Meyer, 21 Misc. 344; stipulation in due form consenting Hinman v. Hapgood, i Den. 188. to a sale by a referee, shall be 39. Hinman v. Hapgood, i Den. made by the sheriff of the said 188. county of Kings." (L. 1889, ch. 167.) 324 LAW AND PRACTICE AS TO REFERENCES. hold liable each of his employers,'*" but like other employees or referees in an action, cannot recover if guilty of mis- conduct."*' § 176. Schedule of referee's fees. — The following is a sched- ule of fees, properly chargeable by referees, in the various proceedings in which they may be appointed to act, viz.: When appointed to superintend discovery,"*^ not to exceed $20 00 In an action or special proceeding in a court of record, per day'^^ , 10 00 Unless, at or before the commencement of the trial or hearing, a different rate of compensa- tion is fixed, by consent of parties, other than those in default for failure to appear or plead, manifested by an entry in the minutes of the referee, or otherwise in writing, or a smaller compensation is fixed by the court or judge in the order appointing him."** Where two cases are tried before the referee at the same time, one-half fee should be allowed in each.'*^ Upon a settlement of a case before a referee, he is entitled to the usual fee of ten dollars per day, to be paid by the party making the case.*^ In supplementary proceedings the fees are the same as in other special proceedings, per day . . 10 00 40. See Russell v. Lyth, 66 App. 42. Code of Civ. Proc, § 807. Div. 290; 72 N. Y. Supp. 615. 43. Code of Civ. Proc, § 3296; 41. See Dickinson v. Earle, 63 ante, § 32. App. Div. 134; 35 Misc. 235; 71 N. 44. Id. Y. Supp. 227, 775; New York Bank 45. Ante, § 32; Mark v. City of Note Co. V. Hamilton Bank Note Buffalo, 87 N. Y. 184. See refer- Co., 71 App. Div. 611; 75 N. Y. ences under § 32, ante. Supp. 520. 46. Ante, § 62. SCHEDULE OF FEES. 325 Or Otherwise as agreed upon or fixed by the judge. In references, in Surrogates' Courts, per day*'. . . $io oo In references under the Assignment Law, per day^^ 10 00 In controversies under Insolvent Debtors Law,*' per day lo oo In proceedings for discovery of life tenant,'" per day 10 00 In supplementary proceedings to collect a tax,'' per day lo oo In mortgage foreclosure cases, upon the trial of the issues the referee is entitled to the usual fee,5^ per day lo oo In references as to surplus moneys, the same fee is allowed,'^ per day ,. lo oo Dower. — In references in actions for dower where commissioners are appointed, their fees are fixed by statute — for each day's service. . 5 00 But fees of a referee are not specifically fixed, and it must be assumed that such fees are regu- lated by the general provision relating to fees of referees,''* per day 10 00 In cases of assessment of damages under the " Highway Law " commissioners or referees are entitled to a compensation, per day,^^ of 4 00 and expenses. 47. Ante, § 119. 51. Ante, i 138; General Tax 48. Ante, § 130; Code of Civ. Law, § 259. Proc, § 3296; Matter of Schaller, 52. Ante, § 85. 10 Daly, 57. 53- Ante, § 96. 49. Ante, § 132. 54. Ante, § 104; Code of Civ. 50. Ante, § 136; Code of Civ. Proc, § 1612. Proc, § 2306. 55. Highway Law, § 92; Greene on Highways (2d ed.), p. 103. 326 LAW AND PRACTICE AS TO REFERENCES. § 177. Referee's fees on sales of real property — In fore- closure — The fees of a referee appointed to sell real prop- erty, pursuant to a judgment in an action for the foreclosure of a mortgage, are the same as those allowed to a sheriff, together with the same disbursements as are allowed to a sheriff, 5^ as follows: For receiving and entering the decree'^ $0 50 For advertising the sale 2 00 Unless the sale is stayed, in which case the fee iss* . ., 100 For commissions on the moneys received and paid out, at the rate of three per centum on the sum received not exceeding $250, and two per centum upon the residue, except in New York, Kings, and Westchester counties, where the commissions shall not exceed two and one- half per centum upon a sum not exceeding $250, and one and one-quarter per centum upon the residue, 59 but in no case can the referee's compensation exceed*" 5^ 00 Where a judgment is paid before sale the referee is entitled to $50, if the sheriff's fees would have exceeded that sum.*' If the property sells for $10,000 or upwards the referee may receive such additional compen- sation as to the court may seem proper,*"' but 56. Ante, § 92; Code of Civ. 60. Ante, § 92; Code of Civ. Proc, §§ 3297, 3307. Proc, § 3307, subd. 11; Caryl v. 57. Ante, § 92; Code of Civ. Stafford, 69 Hun, 318; 53 St. Repr. Proc, § 3307, subd. 6. 426; 23 N. Y. Supp. 534- 58. Ante, § 92; Code of Civ. 61. Ante, § 92; Lockwood v. Proc, § 3307, subd. 8. Fox. 3 Law Bull. 37. 59. Ante, § 92; Code of Civ. 62. Ante, § 92; Code of Civ. Proc, § 3307, subd. 7. Proc, § 3297. SCHEDULE OF FEES. 327 the referee is not entitled to additional com- pensation unless he has actually received and is accountable for $10,000 or more in cash/^ and if the property is bid off by a party and the bid applied on the party's demand, the ref- eree's compensation cannot exceed $10 00*'* In New York county a referee is entitled to fees on sales in actions of foreclosure, as follows: For receiving order of sale and posting notices of sale $10 00 For attending sale 10 00 For drawing each deed 5 00 For attending and adjourning a sale at the re- quest of the plaintiff in the action or by order of the court (but no more than three such ad- journments in one action shall be charged for). 3 00 For making report of sale 5 00 For paying over surplus moneys 3 00 For auctioneer's fees paid by him not to exceed, for each parcel sold (to be paid by the pur- chaser of the parcel in addition to the sum bid) 12 00 And all disbursements for printer's fees at the rates allowed by law, fees of ofificers for taking acknowledgments and oath.^^ In Kings county referee's fees on sales are same as above, except that auctioneer's fees are fixed at 10 00" 63. See note 81, under § 92, ante. 65. New York Consolidation 64. Ante, § 92; Code of Civ. Act, § 1088; L. 1882, ch. 410. Proc, § 3297; Gunnivan v. Carroll, 66. L. 1876, ch. 439. See note 83, 4 Law Bull. 6. under § 92, ante. 328 LAW AND PRACTICE AS TO REFERENCES. In other cases than foreclosure. — The fees of a referee to sell, in an action other than for the foreclosure of a mort- gage, are the same as those allowed to a sherifif, and he is entitled to the same disbursements. Where the referee is required to take security upon a sale, or to distribute, or apply, or ascertain and report upon the distribution or ap- plication of any of the proceeds of the sale, he is also entitled to one-half the commissions upon the amount so secured, distributed, or appHed, allowed by law to an executor or administrator for receiving and paying out money; but his compensation, including commissions, cannot exceed $500.*'' The commissions of an executor are fixed by statute.^* The allowance to a referee under the above provisions are: For receiving and paying out all moneys not ex- ceeding $1,000 , 2-J^ For receiving and paying out additional sums up to $10,000 li^ For receiving and paying out sums above $1 1,000. 1^ 67. Ante, § 99; Code of Civ. 68. Code of Civ. Proc, § 2730. Proc, § 3297. FORMS. COURT. No. I. Stipulation for Reference. Ante, § 8. B- against D— J It is hereby stipulated and agreed that the above-entitled action be referred to E. F., Esq., counselor-at-law, residing at , N. Y., to hear and determine the same and all the issues therein. Either party may enter an order to that effect. G. H., Dated Plaintiff's Attorney. I. K., Defendant's Attorney. No. 2. Order of Reference, by Consent. Ante, § 10. At a Special [or, Trial] Term of the Supreme Court of the State of New York [or other court, as the case may fce] held :it the in the of , N. Y., on the day of , 19. . Present — Hon , Justice [or. Judge]. COURT. B- against D— On reading and filing the stipulation of the attorneys for the above- named parties, and on motion of attorney for plaintiff [or, defendant], it is Ordered, That the above-entitled action be and the same hereby is re- ferred to E. F., Esq., counselor-at-law, of , N. Y., to hear and determine the same and all the issues therein. 329 33° FORMS. No. 3. Order Appointing New Referee where Former Appointee Declines to Serve. Ante, § II. At a Special Term, etc. Present — Hon , Justice. ITitle of cause.] It appearing by affidavit of G. H., plaintiff's attorney herein, that E. F., heretofore appointed referee herein, by an order of this court, dated the day of , 190. ., has declined to serve as such referee, and notice of motion having been duly given to I. K., attorney for defendant herein, it is now, on motion of G. H., attorney for plaintiff. Ordered, That Miss L. M., counselor-at-law, residing at N. Y., be and she hereby is appointed referee to hear and determine the issues herein, in place and stead of the said E. F. No. 4. Order Setting Aside Report and Removing Referee upon Ground of Improper Conduct. Ante, § 12. At a Special Term, etc. Present — Hon , Justice. {Title of cause.] A motion having been made on the part of the plaintiff to set aside the report of the referee, dated the day of , 190. ., and filed in the office of the clerk of the county of , on the day of , 190.., and the order of reference herein, and for a new trial of this action upon the merits, on the ground of improper con- duct of the referee herein in making and delivering his report and in improperly modifying and altering the same after the delivery thereof. Now, on reading and filing the notice of motion herein and the affidavits of , , and , on behalf of the plaintiff, and the affidavits of and , and copy of the referee's re- port in opposition, and upon the judgment-roll and all other papers in this action, and after hearing Mr , of counsel for plaintiff, for the motion, and Mr , of counsel for defendant, opposed, it is Ordered, That said motion be and the same hereby is granted, and that the report of the referee herein, filed in the office of the clerk of county on the day of , 190.., be and the same hereby is set aside and vacated as well as the judgment entered thereon, together with the order of reference entered herein on the day of , igo. ., and the referee named in said order of reference is discharged and a new trial of this action is ordered in this court, with costs and disbursements to abide the event of the action, including the costs and disbursements incurred on said reference [here add any special provision or conditions imposed by the court]. FORMS. 331 No. 5. Order of Reference by the Court, without Motion. Ante, § 22. At a Trial Term of the Court, held, etc. Present — Hon , Justice. {Title of cause.} This action, coming on to be tried at above term, and it appearing to the satisfaction of the court that the trial will involve the examination of long account, and will not require the decision of difficult questions of law, it is Ordered, That this cause be and the same hereby is referred to B. S., counselor-at-law, of , N. Y., to hear and determine the same and all the issues therein. No. 6. Affidavit by Party on Motion for Compulsory Reference. Ante, § 24. COURT. B- against D— STATE OF NEW YORK. ) ^^ . County of , being duly sworn, deposes and says : I. That he is , in the above-entitled action. II. That this action is brought to recover [here state nature of action]. III. That the action is now at issue as to all parties. IV. That the trial of this action will involve the examination of a long account on the part of the [plaintiff, or defendant, or both], consisting of upwards of items of charges and credits ; and that the same will not require the decision of difficult questions of law. [Signature.] Sworn to before me, this ) day of , 19. • ' 332 FORMS. No. 7. Affidavit by Attorney for Compulsory Reference. Ante, § 24. [Title of cause.] IVenue.] , being duly sworn, says : I. That he is the attorney for the [plaintiff, or defendant] herein. II. That this action is brought to recover [here state nature of action], III. That the said action is at issue as to all parties and is ready for trial. IV. That the trial of this action will necessarily and directly involve the examination of a long account, consisting of more than items of charges and credits, and the trial will not require the decision of difficult questions of law. V. That the reason this affidavit is not made by [plaintiff or defendant] is [here state reasons]. [Signature.] [Jurat.] No. 8. Notice of Motion for Reference. Ante, § 24. [Title of cause.] To Attorney for : Sir. — You will please take notice, that upon the affidavit of , verified on the day of , 190.., and on all the pleadings and proceedings herein, this court will be moved at the Special Term thereof, to be held at the , in the of N. Y., on the day of , 190.., at o'clock in the noon, or as soon thereafter as counsel can be heard, for an order referring the above-entitled action and all the issues therein to a referee to hear and determine the same. Yours, etc., Dated, , Attorney for No. 9. Affidavit to Oppose Motion. Ante, 8 25. [Title of cause.] [Venue.] C. D., the defendant in the above-entitled action, being duly sworn, deposes and says : I. That this action is brought to recover [here state the cause of action]. II. That deponent has fully and fairly stated this case to his counsel, FORMS. 333 G. H., residing at , N. Y., and that the trial of this cause, as deponent is advised and believes, will require the decision of difficult ques- tions of law. III. That said difficult questions of law will arise as follows: [Here state fully in regard to same']. No. lo. Stipulation to Avoid a Reference. Ante, S 2S. [Title of cause.] The plaintiff in this action having served his motion papers for an order referring this cause, the defendant hereby stipulates that he will not, upon the trial thereof, dispute or question the items of goods alleged to have been sold [or as the case may be], to recover for which this action is brought, either as to number, value, or price, but denies that the said goods were ever sold to defendant, or that he is in anywise liable therefor. Dated, CD., Defendant. No. II. Affidavit to Oppose Motion where Action is on Special Agreement to Perform Labor, for a Gross Sum. Ante, § 25. [Title of cause.] COUNTY OF , «..• , being duly sworn, says: That the trial of this action will not involve the examination of a long account within the provisions of section 1013 of the Code of Civil Procedure;* that the action is for work, labor, and services, all of which defendant agreed to perform for the sum of dollars, and there are no other items of debit or credit in- volved herein. Sworn to before me, this I day of , 190. . ) No. 13. AfRdavit to Oppose Motion by Denying Account. Ante, § 25. Same as in last above to *; that this action is for goods and merchan- dise sold and delivered; that all of said goods were sold at one time, and 334 FORMS. as one item; that the credit thereon was a payment at said time and de- ducted from the amount of said bill, and there are no other items of debit or credit involved therein. Sworn to before me, this ) day of , 190. . ) No. 13. Affidavit to Oppose Motion where Action is not Founded on Contract. Ante, § 25. [Title of cause."] COUNTY OF «.; , being duly sworn, says: That this action is not referable under the provisions of section 1013 of the Code of Civil Procedure, as it is not founded on contract, but is for unliquidated damages for breach of contract [or, for damages for fraud, or, negligence, or as the case may be], as appears by the complaint herein, a copy of which is hereto annexed. Sworn to before me, this ) day of , 190. . ) No. 14. Affidavit to Oppose Motion where Fraud is Alleged as a Defense. Ante, § 25. [Title of cause.] COUNTY OF , jj.; , being duly sworn, deposes and says: That this action is for goods sold and labor performed [or as the case may be] ; that the answer alleges that said sale [or as the case may be] was procured by fraud, as appears by the answer herein, a copy of which is hereto annexed. Sworn to before me, this I day of , igo- • f No. 15. Affidavit to Oppose Motion zvhere Account is not Directly Involved. Ante, § 25. [Title of cause.] COUNTY OF , «..- , being duly sworn, deposes and says: That this action is brought to recover upon [here state cause of action] ; that the answer FORMS. 335 alleges [here state defensel ; that the real issue is [state briefly the issuel^ and no accounting can be had until such issue has been tried and deter- mined. Sworn to before me, this i day of , 190. . j No. 16. Affidavit to Oppose Motion where Speedy Trial can he had at Trial Term. Ante, § 2S. [Title of cause.'\ COUNTY OF .r.j..- , being duly sworn, says that this action is brought to re- cover [here state cause of action] ; that the answer is [here state defense] ; that no difficult questions of law are involved therein ; that the cause can be tried at the next trial term in less than one day and a reference would be oppressive to this deponent on account of the additional ex- pense and trouble involved. Sworn to before me, this 1 day of , 190. . j No. 17. Order of Reference of Issues on Motion. Ante, § 27. At a Special Term, etc. Present — Hon , Justice. [Title of cause.] On reading and filing the pleadings in this action and bill of particulars and the affidavit of plaintiff's attorney, verified on the day of , 190.., and on motion of E. F., plaintiff's attorney [or, after hearing Mr. E. F., of counsel for plaintiff, and Mr. G. H., for defendant, who reads affidavit of C. D., verified on the of , 190. ., in opposition], Ordered, That this cause be and the same hereby is referred to L. M., Esq., counselor-at-law, of , N. Y., to hear and determine the same and all the issues therein. No. 18. Notice of Appeal from Order of Reference. Ante, § 28 [Title of cause.] Gentlemen. — Take notice, that the defendant in the above-entitled action hereby appeals to the Appellate Division of the Supreme Court, from the 33^ FORMS. order entered therein, in county clerk's office, on the day of , 190.., referring said action to a referee to hear and determine the same, and from each and every part of said order. Dated, G. H., Attorney for Defendant. To E. F., Plaintiff's Attorney, and To D. J., Clerk of the County of No. 19. Referee's Appointment of Time and Place of Hearing. Ante, § 29. ITitle of cause.] I, J. D , the Referee appointed to hear and determine the issues of the above-entitled action, do hereby fix and appoint the day of , 190.., at o'clock in the noon, as the time and my office [or as the case may be] , No street, in the of , N. Y., as the place for the trial thereof. Dated, J. D., Referee. No. 20. Notice of Hearing before Referee. Ante, § 30. [Title of cause.] To , Attorney for : Sir. — Take notice, that the above-entitled action will be brought to a bearing before J. D., Esq., the referee appointed herein, at his office [or, according to appointment]. No street, in the of , N. Y., on the day of , 190. ., at o'clock in the noon of that day. Dated , Attorney for No. 31. Referee's Oath. Ante, § 31. [Title of cause.] [Venue.] I, J. D., the referee appointed herein, do solemnly swear that I will faithfully and fairly try the issues, and determine the questions referred FORMS. 337 to me in this case, and that I will make a just and true report thereon, according to the best of my ability and understanding. [Signature.] Subscribed and sworn to before me, this | day of , 190.. f No. 22. Waiver of Oath of Referee. Ante, § 31. [Title of cause.] In accordance with the provisions of section 1016 of the Code of Civil Procedure, it is hereby stipulated that the oath of the referee herein be ' and hereby is expressly waived. Dated, E. F., Attorney for Plaintiff. G. H., Attorney for Defendant. No. 33. Stipulation as to Fees of Referee. Ante, § 32. [Title of cause.] It is hereby stipulated and agreed by and between the parties to the above-entitled action that the fees of , the referee herein, shall be at the rate of dollars per day for each day spent in the business of said reference. Dated, E. F., Attorney for Plaintiff. G. H., Attorney for Defendant. No. 24. Suhpcena for Reference. Ante, § 34. The People of the State of New York, to S. R., Greeting: We command you and each of you, that, all and singular business and excuses being laid aside, you and each of you appear and attend before J. D., the referee appointed herein by the Court, at , in the of , N. Y., on the day of , 190.., at o'clock in the noon, to testify and give evidence 338 FORMS. in a certain action now pending in the Court, then and there to be tried, between A. B., plaintiff, and C. D., defendant, on the part of the * And for a failure to attend, you will be deemed guilty of a contempt of court, and liable to pay all loss and damages sustained thereby, and forfeit fifty dollars in addition. Witness : Hon. E. A. S., one of the justices of our said court, at , the day of , 190. . N. H. A,. Attorney for Clerk. No. 25. Subpoena Ticket. Ante, § 34. By virtue of a writ of subpcEna to you directed and herewith shown, you are commanded, that, all and singular, etc. [continuing as in form last preceding]. Dated, the day of , 190. . By the Court. To C. J. Attorney. No. 36. Subpoena Duces Tecum. Ante, § 34. As in No. 24 to *, and that you bring with you and then and there pro- duce as evidence a certain [here state papers, books, and documents re- quired^ now in your custody, or under your control, and all other letters, deeds, writings, etc., which you have or may have concerning the premises. And for a failure, etc. [continuing as in Form No. 24, from *]. No. 37. AMdavit of Service of Subposna. Ante, § 34. [Title of cause.] [Venue.] being duly sworn, says, that he is twenty-one years of age; that the witnesses hereinafter named, resided, respectively, at the places where they were subpoenaed as hereinafter stated ; that at the times and places stated below, this deponent served the annexed [or, within] sub- pcena, personally, upon the witnesses named below, by exhibiting to each FORMS. 339 of such witnesses the annexed [or, within] original subpoena, and deliver- ing to each of them a subpoena ticket, containing the substance thereof, a copy of which is also hereto annexed, and at the same time paying to each the sum set opposite his or her name, viz. : On , at , N. Y., on the day of , 190. ., amount paid, $ On , at , N. Y., on the day of , 190. ., amount paid, $ as and for the traveling fees of such witnesses, respectively, from the residence of each of said witnesses, to the place mentioned in the sub- poena, and return therefrom, and one day's attendance as such witnesses. Sworn to before me, this | day of , 190. . ) No. 38. Report on Dismissal of Complaint for Plaintiff's Default and Neglect to Prosecute. Ante, § 36. {Title of cause. ^ To the Court : In pursuance of an order made in the above-entitled action, by which it was referred to me to hear and determine the same, I do report that I have been attended by the plaintiff in person, and by , counsel for defendant. Several adjournments were had at plaintiff's request, the parties being present on the day of , last, when the cause was adjourned to the day of , 190. ., at plaintiff's request. On the said day of , 190.., the plaintiff did not appear nor did any one in his behalf; after waiting for more than one hour, and upon motion of defendant's counsel, the complaint and action were dismissed by me for want of prosecution, with costs to be adjudged, in favor of the defendant, and judgment is hereby directed accordingly. All of which is respectfully submitted. Dated, , Referee. No. 29. Report on Dismissal of Complaint for Failure to State a Cause of Action. Ante, § 36. [Title of cause. "i To the Court : Pursuant to an order made in the above-entitled action, by which it was referred to me to hear and determine the same, I do hereby report : 340 FORMS. That on this case coming on for hearing before me, I was attendea by the parties and their attorneys ; and before any testimony had been taken, the counsel for the defendant made a motion before me to dismiss the complaint of the plaintiff because it did not state a cause of action, and having entertained said motion and heard the arguments of the counsel for the respective parties and deliberation having been had thereupon, I decide that the said motion should be and hereby is granted, and that the defendant is entitled to judgment for the costs of the action. Let judg- ment be entered accordingly. All of which is respectfully submitted. Dated, Referee. No. 30. Report upon Motion for Judgment for Plaintiff on the Pleadings. Ante, § 36. [Title of cause. ^ To the Court : In pursuance of an order of this court, made in the above- entitled action, by which it was referred to me to hear and determine the same, I do hereby report, that I have been attended by the parties and their attorneys, and a motion having been made by plaintiff's attorney for judgment upon the pleadings, and after hearing the arguments of counsel for the re- spective parties, I find and decide as matter of law that the plaintiff is entitled to judgment upon the pleadings, for the amount claimed in his complaint, and that plaintiff should recover of the defendant the sum of dollars, together with the costs of the action to be adj usted. Judgment is hereby ordered accordingly. Dated, Referee. No. 30a. Undertaking where Action or Counterclaim is Founded upon a Lost Negotiable Instrument. Ante, § 37. [Title of cause.'] Whereas, The above-entitled action is brought to recover payment of a note made by the defendant above named to the order of the plaintiff in the sum of dollars, and said note was lost while in the possession of, and belonging to, the plaintiff, and plaintiff is desirous of proving the contents of said lost note by parol or other secondary evi- dence. Now, Therefore, We, A. B., of , and C. D., of [stating resi- dence and business, respectively], do hereby, jointly and severally, under- FORMS. 341 take to indemnify and hold harmless the defendant, his heirs and personal representatives against any claim by any other person on account of said note, and against all costs and expenses by reason of such a claim, not exceeding the sum of dollars. Dated, A. B., C. D. Approval by Referee. The within undertaking is hereby approved as to the form and manner of execution and as to the sufBciency of the sureties. Dated, E. F., Reteree. No. 31. Form of Oath for Witnesses. Ante, § 38. You do swear, in the presence of the ever-living God [or, you do solemnly, sincerely, and truly declare and affirm], that the evidence you shall give in this case, wherein A. B. is plaintiff, and C. D. defendant, shall be the truth, the whole truth, and nothing but the truth, so help you God. [For various other forms, see § 38, ante.'] No. 33. Affidavit of Death of Referee. Ante, § 46. ITitle of cause.] COUNTY OF ss.: , attorney for the plaintiff above named, being duly sworn, deposes and says, that this action was referred by order of this court, dated the day of , 190.., to , as referee, to hear and determine ; that after several hearings, and on the day of , igo.., the said referee died, leaving the reference undeter- mined. That there has been no change of parties since said order of reference was made lor if there has, so state]. Sworn to before me, this | day of , 190. • f 342 FORMS. No. 33. Notice of Motion for Appointment of New Referee in Place of One Deceased. Ante, S 46. [Title of cause. ^ To Defendant's Attorney: SiE. — Take notice, that upon the annexed affidavit, and all the papers, orders, and proceedings herein, the undersigned will move this court at Special Term, to' be held at , on the day of , 190. ., at the opening of court on that day, or as soon thereafter as counsel can be heard, for an order appointing some suitable person referee, under the order of reference dated the day of , 190. ., to hear and determine this action and all the issues therein, in the place and stead of , deceased, to whom this cause was by said order referred, and for such other or further order as the court may grant in the premises. Dated, , Plaintiff's Attorney. No. 34. Order Appointing New Referee in Place of One Deceased. Ante, § 46. At a Special Term, etc. Present — Hon , Justice. [Title of cause.'] On reading and filing the affidavit of , plaintiff's attorney, and notice of motion herein for the appointment of a new referee in this action in place of , heretofore appointed. and now deceased, and after hearing for the plaintiff, and in opposition, it is Ordered, That , Esq., counselor-at-law, of , N. Y., be and he hereby is appointed referee in place of the said , de- ceased, to hear and determine all the issues therein. No. 35- Notice Terminating the Reference. Ante, § 48. [Title of cause. 1 Take notice, that more than sixty days having elapsed since the submis- sion of the above-entitled cause to the referee herein, and no report hav- FORMS. 343 ing been filed or delivered by him, as required by section 1019 of the Code of Civil Procedure, I hereby elect to terminate said reference. Dated , Plaintiff's Attorney. To Attorney for Defendant. No. 36. Referee's Report, Generally. Ante, §§ 49, 50, Si, S2. {Title of cause.} To the Court : The above-entitled cause having been referred to me to hear and deter- mine all the issues therein, by an order of this court dated the day of , 190.., I, the undersigned referee, do hereby respect- fully report that I have been attended by the parties and their respective counsel, and that after hearing their respective allegations and proofs, I find the following: Matters of Fact: I II Ill IStating all findings of fact separately and concisely.] As Conclusions of Law I find: I II III. That the defendant is indebted to the plaintiff in the sum of dollars, with interest thereon from the day of , 190. ., and that plaintiff is entitled to judgment therefor against the de- fendant, with the costs of the action. Let judgment be entered accordingly. Dated, , Referee. No. 37- Certificate of Referee on Motion for Extra Allowance. Ante, § S3. [Title of cause.} I, A. B., the undersigned referee, before whom the issues in this action were tried, do respectfully certify that the case herein was a difficult one to try on the part of the plaintiff [or, defendant], for that [here set forth the cause of its difficulty and time necessarily consumed] ; and that in my opinion a percentage of per cent, on $ , being the 344 FORMS. amount recovered [or, of the value of the subject-matter involved], to the plaintiff [or, defendant], as a further allowance of costs in this action would be reasonable and proper. Dated, A. B., Referee. No. 38. Report on Trial of Demurrer. Ante, § 54. [Title of cause.} To the Court : In pursuance of an order made in the above-entitled action, by which it was referred to me to hear and determine the issues of law arising on the demurrer interposed by the defendant to the plaintiff's complaint, and after hearing , counsel for the defendant, and , coun- sel for the plaintiff, and having duly considered said pleadings, I re- spectfully report as follows: I find as conclusion of law that the complaint in the above-entitled action does not state facts sufficient to constitute a cause of action. I direct that judgment be entered herein dismissing the said complaint absolutely, with costs to the defendant [or the proper interlocutory judg- ment}. Dated, , Referee. No. 39- Judgment on Report of Referee on Trial of Issues. Ante, § 57. [Title of cause.} Judgment, the day of , 190. ., at o'clock, . . m. This cause having been referred, by order of this court, to , as sole referee, to hear and determine the same, and his report having been filed, whereby he finds and decides that the plaintiff is entitled to judgment against the defendant for the sum of dollars, besides costs, and the plaintiff's costs having been adjusted at $ , it is now, on motion of , plaintiff's attorney: Ordered and Adjudged, That the plaintiff herein, recover of , the defendant above named, the said sum of dol- lars, together with dollars costs and disbursements, amounting in all to the sum of dollars, and that he have execution therefor. Clerk. FORMS. 345 No. 40. Notice of Entry of Judgment. Ante, § S7. [Title of cause.'] Take notice, that the within is a copy of the judgment entered upon- the report of the referee herein, a copy of which is also herewith served, on the day of , 190. ., in the office of the clerk of Dated, Plaintiff's Attorney. To Defendant's Attorney. No. 41. Exceptions to Referee's Report. Ante, i 58. [Title of cause.] Take notice, that the defendant [or, plaintiff] excepts to the conclusions of law of the referee herein, as set forth in his report bearing date the day of , 190. ., in the following particulars : I. To the conclusion of law numbered " I," wherein he finds and de- cides " That [here state the conclusion excepted to in full, and so on,,, specifying separately each conclusion deemed erroneous]. Dated, Yours, etc., * Attorney for Defendant. To Plaintiff's Attorney. No. 42. Proposed Case and Exceptions on Appeal from Judgment Entered upon a Report of a Referee. Ante, §§ 59, 60. [Title of cause.] 1 This action was commenced on the day of , 190. ., by 2 the service of the summons and copy of the plaintiff's complaint herein,. 3 as follows : [Here insert copies thereof.] 4 The defendant's answer was served on the day of ,, 5 190.., and is as follows: [Here insert copy answer.] 6 On the day of , 190. ., the plaintiff served his reply 7 as follows : [Here insert copy thereof.] 8 By an order of the court made on the day of 190. .> 346 FORMS. I and duly entered in the office of the clerk of county on the 2 day of , 190. ., this cause was duly referred to , 3 Esq., of , N. Y., to hear and determine all the issues therein 4 lor, on the day of , 190. ., the following order was duly 5 made, and insert copy]. 6 The issues of said action were brought to trial before said , 7 as referee, on the day of , 190.., and on subsequent 8 days. g To maintain the issues on his part the plaintiff first called as a witness 10 , who being duly sworn testified as follows: [Here set forth 11 the testimony of witness in narrative form.] 12 Question. On the occasion referred to did you hear, etc. [stating ques- 13 tion in full.] 14 The counsel for defendant objected to the question upon the grounds: 15 [State fully the objections made.] 16 The referee overruled the objection, to which ruling defendant's 17 counsel duly excepted. i8 The witness answered as follows : [Give answer in full.] 19 [Insert remainder of the testimony of witness in similar form, giving so cross-examination so far as deemed necessary.] 21 Plaintiff then called as a witness , who being sworn testified 22 as follows: I reside at , and am acquainted with the parties, 23 etc. [giving testimony of the witness relating to the questions to be re- 24 viewed, and questions, objections, and exceptions, and so on with all the 25 witnesses for plaintiff]. 2^ The plaintiff here rested his case. 27 The defendant's counsel then moved for a nonsuit upon the following 28 grounds : [Stating them separately and fully.] 29 The referee denied the motion, and defendant's counsel duly excepted 30 to the ruling. 31 The defendant then called as a witness in his behalf , who 32 being duly sworn testified as follows : [Here give that portion of the 33 testimony of the witness as is material to the questions to be reviewed.] 34 Upon cross-examination the witness testified as follows : [Here in- 35 sert cross-examination so far as deemed necessary.] 36 Re-direct examination. [Here insert it.] 37 The defendant's counsel then offered in evidence a paper identified by 38 the witness and marked Defendant's Exhibit "A." 39 The plaintiff objected to its reception upon the grounds [here state 40 grounds of objection]. 41 The referee sustained the objection and defendant's counsel duly ex- 42 cepted. 43 [Continue the testimony so far as deemed necessary ] 44 The defendant then rested, and testimony closed and case summed up 45 and submitted. 46 The referee filed his report, which forms a part of the judgment- roll 47 herein. FORMS. 347 1 The defendant duly filed his exceptions to said report and the same are 2 also contained in the judgment-roll [or, if not, are as follows: [Here state 3 themA 4 The foregoing contains all the evidence taken and all the proceedings 5 had on the trial of this cause. No. 43. Notice to be Indorsed on Proposed Case. Ante, § 6o. Sir. — You will please take notice that the within is a copy of the defendant's proposed case herein. Dated, , Attorney far Defendant. To Attorney for Plaintiff. No. 44. Amendments to Proposed Case. Ante, § 6i. [Title of cause.l, Sir. — You will please take notice that the plaintiff [or, defendant] proposes the following amendments to the proposed case herein: First Amendment : Line , page , strike out the words [here specify words objected io] and insert in lieu thereof the following: [Here state words proposed.'] Second Amendment : Strike out all of lines , and on page Third Amendment: Insert between lines and on page the following : [Here state proposed amendment.'^ t)ated, Yours, etc.. To Plaintiff's Attorney. Attorney for Defendant. No. 45- Notice of Settlement of Case. Ante, § 6i. [Title of cause.'] Sir. — Take notice, that the proposed case and amendments thereto will be presented to , referee herein, at his office. No 348 FORMS. street, in the of , N. Y., on the day of , 190. ., at o'clock in the noon, for settlement. Dated Yours, etc., To Attorney for Attorney for No. 46. Settlement of Case. Ante, I 62. The foregoing case and exceptions were settled before me this day, and I order and direct the same filed as so settled and to be annexed to the judgment-roll herein [the order should designate which, if any of the exhibits in the case, are to be printed at length}. Dated, Referee. No. 47. Notice of Appeal. Ante, § 64. [Title of cause.} Take notice, that , the defendant herein, appeals to the Appel- late Division of the Supreme Court, Department, from the final judgment of the Court, in favor of the plaintiff herein, entered in the office of the clerk of county, on the day of , 190. ., upon the report of , referee in this action, and that the defendant and appellant intends to bring up for review upon such appeal the said referee's report, and all rulings and orders made upon said trial adverse to this appellant. Dated, Yours, etc., To , Attorney for Defendant and Appellant. Attorney for Plaintiff. To the Clerk of the County of No. 48. Order Adjudging Witness Guilty of Contempt, in Presence of the Referee. Ante, § 67. Present — , Referee. [Title of cause.} Whereas, On the trial of the above-entitled cause before the under- signed as sole referee herein, this day, one , a witness called FORMS. 349 and sworn in behalf of the , did refuse to produce as evidence a certain letter lor, other document, or, writing, describing it] after being by me directed [or, describing such other act of contempt as may have been committed], the same being pertinent and proper upon the issues before me ; Now on motion of , attorney for , it is Ordered, That the said , by reason of his contumacious con- duct as set forth in the premises, be and he hereby is adjudged guilty of a contempt of court. It is Further Ordered, That the said , for the said con- tempt of which he is so adjudged guilty, be imprisoned by the sheriff of the county of in the common jail of said county until he, the said , shall be willing to produce such letter [or, other writing] as evidence [or, shall be willing to do such other act for the refusal of which he may have been adjudged guilty], and until he shall have paid the costs and expenses of these proceedings to punish for such contempt, to wit : the sum of dollars, and the sheriff's fees on the war- rant to be issued herein are paid, or until he shall be discharged accord- ing to law; and that a warrant in accordance herewith issue forthwith. Dated, Referee. No. 49. Warrant of Commitment on Referee's Order. Ante, § 67. The People of the State of New York, to the Sheriff of the County of , Greeting: Whereas, An order has been made by a referee duly ap- pointed and qualified, adjudging one guilty of a contempt of court, committed in the immediate presence of said referee, upon the trial of an action between , plaintiff, and , defendant, on the day of , 190.., and directing that the said be committed to the common jail of county, there to remain charged with the contempt mentioned in said order, until he shall be willing to produce the writings mentioned in said order [or as the case may be], and shall have paid the costs and expenses of the pro- ceedings against him amounting to dollars, and the sheriff's fees on this warrant, and that a warrant of commitment issue accord- ingly. Now, therefore, We command you that you take the body of the said , and him closely and safely keep in your custody, in the com- mon jail of the county of until he shall be willing to produce the said , and shall have paid the costs and expenses mentioned in said order, amounting to dollars, and your fees hereupon, or until he shall be discharged according to law, but for a time not 350 FORMS. exceeding six months, and that you make return of this writ, with your proceedings thereon, to our said court. Witness : Hon. M. L. S., one of the justices of our Supreme [l. s.] Court, and the seal thereof, this day of , 190. .. J. F., J. D., Clerk. Attorney for No. 50. Affidavit to Procure Order to Show Cause. Ante, § 67. [Title of caused COUNTY OF ss.: , being duly sworn, says: That he is the attorney for in the action above entitled ; that said action was brought for [here state cause of action], and issue has been joined thereon, and the cause duly referred to , to hear and determine all the issues; that during the trial before said referee the following order was made by said referee, addressed to and directing the [plaintiff, or defendant, or one ] to [here state substance of order or refer to copy thereof attached'], and that said [plaintiff, or defendant, or ] has utterly failed, neglected, and refused to comply with the terms of said order so made by said referee as aforesaid, although demand was made upon him to perform and comply with the same, both in presence of the said referee and again on the same day when a copy of said order was duly served upon him, the said [plaintiff, or defendant, or ], and that upon such refusal and upon request of this deponent, the said hearing before said referee was adjourned for the purpose of taking such proceedings as provided by law for the punishment of said offense. A copy of the minutes of said trial are hereto annexed, and are substantially correct; that no previous application for an order hereon has been made. Sworn to before me, this ) day of 190.. f No. SI. Order to Show Cause in Contempt Proceedings. Ante, § 67. [Title of cause.] On the annexed affidavit of , verified the day of , 190. ., by which it appears that the [plaintiff, or defendant, or one ] has failed and refused to obey an order and direction made by me as referee on the trial of the above-entitled action, on the day of , 190.., directing and requiring him, the said FORMS. 351 [plaintiff, or defendant, or ] to [here state substance of the- order], and that a personal demand has been made upon to comply with the same, which has been refused, and that a right or remedy of the [plaintiff, or defendant] in this action has been defeated, impaired, im- peaded, or prejudiced by his said refusal, and on motion of , attorney for the herein, it is Ordered, That the said show cause at a Special Term of the Supreme Court to be held at the on the of N. Y., on the day of , 190.., at the opening of court on that day, or as soon thereafter as counsel can be heard, why he should not be punished for his alleged contempt. Copies of this order and of the affidavit and other papers upon which the same is granted, must be served upon the said , at least two days before the said day of , 190. . Dated, , Referee. No. 53. Warrant of Attachment in Contempt Proceedings. Ante, § 67. The People of the State of New York, to the Sheriff of the County of , Greeting: Whereas, It has been made to appear to this court that has been guilty of contempt of court in that he did on the day of , 190. ., wrongfully and willfully disobey an order of the Supreme Court in an action pending therein, wherein is plaintiff and , defendant, and duly served on him, the said , ordering and directing him, the said , to [here set forth the substance of order and act of contempt]. Now, therefore. You are commanded to arrest the said and have him before this court at a Special Term thereof, to be held at the , in the of , N. Y., on the day of , 190.., at o'clock, in the noon, to answer for said contempt, and have you then and there this writ. Witness: Hon. W. O. H., one of the justices of the Supreme Court, this day of , 190... W. O. H., /. 5'. C. Attorney for Indorsement on Above. Let the accused give an undertaking in the sum of dollars for his appearance to answer. W. O. H., /. 5-. C. 352 FORMS. No. 53. Order of Commitment by the Court. Ante, § 67. At a Special Term, etc. Present — Hon. A. B. C, Justice. SUPREME COURT. The People of the State of New York, upon the Relation of , against A warrant of attachment having heretofore been issued out of this court, commanding the sheriff of the county of to arrest the above-named , and bring him before this court, to answer for liis contempt thereof in the above-entitled proceeding, and said sheriff having arrested said defendant and brought him before this court, and interrogatories having been filed in behalf of the relator, and said having answered the same ; and it appearing from an affidavit of the complainant, dated the day of , 190. ., upon which said warrant of attachment was issued, the defendant's answer to said interrogatories and the affidavits of that the said has been guilty of contempt of court, in that he did, on the day of , 190.. [here set forth acts complained of\; and that such conduct was calculated to, and actually did, defeat, impair, impede, or prejudice the rights and remedies of the complainant herein. Now, THEREFORE, On reading and filing said affidavits, answer, war- rant of attachment, and the sheriff's return, and on motion of , attorney for the relator herein, it is hereby Ordered and Adjudged, That the said is guilty of a con- tempt of court, and that the rights and remedies of the complainant 4iave been prejudiced thereby, and that said complainant has been damaged thereby to the extent of dollars, besides the costs and expenses of this proceeding; and it is further Ordered and Adjudged, That said be fined therefor the sum of dollars, the amount of the aforesaid damages, for his mis- conduct, and that he pay said sum forthwith to the clerk of this court for indemnity for the use of the relator. It is Further Ordered, That the defendant pay to said clerk, for the use of the relator, the costs and expenses of these proceed- ings, amounting to the sum of dollars. Further Ordered, That said defendant be imprisoned in the common jail of the county of until said fine, including said costs and expenses, be paid, but not exceeding six months, and that a war- rant of commitment issue accordingly. FORMS. 353 No. 54- Warrant of Commitment on Order of Court. Ante, § 67. SUPREME COURT — County of The People of the State of New York, upon the Relation of . against Defendant. The People of the State of New York, to the Sheriff of the County of , Greeting: Whereas, An order was made by the Supreme Court, at a Special Term thereof, held at , on the day of , 190. ., in the above-entitled proceeding, that , defendant, be committed to the common jail of the county of , there to remain, charged with the contempt mentioned in said order, until he should have paid the fine mentioned in said order, imposed upon him for his said misconduct, amounting to the sum of dollars, together with the costs and expenses of the proceeding, to punish for such misconduct, amounting to the sum of dollars, and that a warrant of commitment issue accordingly. Now, THEREFORE, we command you that you take the body of the said and him safely and closely keep in your custody, in the com- mon jail of the county of , until he shall have fully paid the fine imposed as aforesaid, to-wit : The sum of dollars, and also the costs and expenses aforesaid, amounting to dollars, and your fees hereupon, or until the said shall be discharged according to law, but for a time not exceeding six months, and that you make return of this writ with your proceedings thereon to our said court. Witness: Hon. S. A. K., one of the justices of our said court, and [l. s.] the seal thereof, this day of , 190. . C. H., , Clerk. Attorney for Relator. No. 55. Summons by Referee. Ante, § 72. ITitle of cause.] Pursuant to an order of reference made in the above-entitled cause, , the referee therein named, do hereby summon you, 354 FORMS. the defendant therein, to appear before me, at ray office, No street, in the of , N. Y., on the day of , iQO- ■, at o'clock in the noon, to attend upon the matters in reference before me in such cause. Dated, ' > Referee. [Underwriting,] To produce books and papers as follows: [Naming them.] No. s6. Minutes of Testimony. Ante, § 72. [Title of cause.] Before , Referee, at , N. Y., on the day of ,190.. Appearances : , for plaintiff. , for defendant. , being duly sworn on behalf of plaintiff, testified as follows r [Here insert the testimony.] [Signature of Witness.] Subscribed and sworn to before me, this j day of , 190.. ( * Referee. No. 57. Order of Reference to Take an Account. Ante, § 78. At a Special Term, etc. Present — Hon , Justice. [Title of cause.] On reading and filing [specifying the papers used and the proceedings had], and it appearing that the taking of an account is necessary for the information of the court, it is Ordered, That it be referred to A. B., Esq., counselor-at-law, of No. street, in the city of , to take an account of the transactions mentioned in the pleadings in this action, and to report to the court thereon [and to return the testimony taken on such reference with his said report]. And it is Further Ordered, That all the parties hereto, are to produce under oath, and leave with the said referee, as he shall direct, all books and accounts in their possession or under their control, relating to the matters in controversy herein. [Add such further directions as may be expedient in the particular case.] FORMS. 355 No. 58. Referee's Report, Taking and Stating an Account. Ante, § 78. ITitle of cause.} To the Court of : Pursuant to an order of this court, made in the above-entitled action the day of , referring it to me to take and state an account of the transactions mentioned in the pleadings in this case, I do respect- fully report: I. That I have been attended by [specifying the parties attending}. That prior to hearing the testimony or entering upon the duties of the said reference, I took the oath prescribed by section 1016 of the Code of Civil Procedure, which is hereto annexed. II. That I have examined all the vouchers, books, and witnesses, and have made the following allowances between the parties hereto, upon the basis of the accounts exhibited in Schedule A, hereto annexed. [Specify- ing same.} III. That after making all just and proper allowances, and striking a balance, I find that nothing is due from either party to the other [or otherwise}. Annexed to this report is the testimony taken. All of which is respectfully submitted. Dated, A. B., Referee. No. 59. Order of Reference to Take Receiver's Account, Etc. Ante, § 78. At a Special Term, etc. Present — Hon , Justice. On reading and filing [specifying the papers and the proceedings}, after hearing A. B., attorney for the receiver, etc., it is Ordered, That C. D., Esq., counselor-at-law, be and he hereby is ap- pointed referee in this action, to take the proofs and evidence that may be offered by K. G., said receiver, or by any other parties interested herein, touching the matter of the compensation of the said R. G., as receiver, together with his expenses and any advances he may have made in his receivership, and that said referee report to this court the evidence taken by him, with his opinion thereon as to the allowance to be made to said receiver for his services, advances, and expenses. And it is Further Ordered, That the said referee do also take and state the account of said R. G., as such receiver, and in taking such ac- count he take such testimony as may be offered by any of the parties interested as to whether the accounts made or debt incurred by said 356 FORMS. receiver are just and proper charges against said estate, and that he re- port to this court the amount of said debt incurred by said receiver, together with the evidence. No. 60. Order of Reference to Report upon Specific Questions of Fact, with Opinion. Ante, § 79. At a Special Term, etc. Present — Hon , Justice. [Title of cause.^ A motion having been made herein [specify the nature thereof], upon which questions of fact have arisen, it is Ordered, That it be referred to A. B., Esq., counselor-at-law, of street, in the city of , to take evidence and report the same to this court, with his opinion thereon, upon the following questions of fact [specify the questions of fact]. No. 61. Report upon Foregoing. Ante, i 79. [Title of cause.] To the Court of : Pursuant to an order of this court, made in the above-entitled action on the day of , referring it to me to take the evidence and report with my opinion, I do hereby report that before proceeding to take said evidence, I took the oath prescribed by section 1016, Code of Civil Procedure, which is hereto annexed. I took testimony on the matters specified in said order on the day of , being attended on said day by [specify the parties at- tending], which testimony is hereto annexed; and I do further report that my opinion on the questions of fact in the said order named is as follows, viz. : [Specify same.] AH of which is respectfully submitted. Dated A. B., Referee. FORMS. 357 No. 62. Report Attached to Depositions. Ante, § 8i. [Title of cause.'l To the Court of : I, A. B., referee, appointed by order dated the day of , to take the deposition of E. F., in the above-entitled action, hereby re- port that in pursuance of the said order, the said E. F. appeared before me on the day of , at my office, No street, in the city of , at o'clock, and at subsequently adjourned days, and submitted to an examination, and made a deposition, which, together with all proceedings had before me, I herewith deliver to G. H., the at- torney for the party who procured the order for such examination. Dated, A. B., Referee. No. 63. Order Appointing Referee to Examine Party Before Trial. Ante, § 82. [Title of cause. ^ On reading and filing the affidavit of , verified the day of , 190. ., and on motion of , attorney for the it is Ordered, That , the above named [or, named in said affidavit], appear before , of , N. Y., who is hereby appointed referee to take the deposition of , afore- said, before trial, at , in the of , N. Y., on the day of , 190. ., at o'clock in the noon, then and there to be examined pursuant to the provisions of section 870 [or, 871] of the Code of Civil Procedure. It is Further Ordered, That the said shall be examined only as to [here state the matters to be examined upon]. It is Further Ordered, That service of this order be made upon the said not more than twenty, nor less than five days before the date of the examination above stated. [// the person to be examined is in custody, add:] And it appearing that the said is confined in the jail [or, prison], It is Further Ordered, That the keeper of said jail [or, prison] produce said , aforesaid referee, at said jail [or, prison] subject to the following conditions [naming them]. Dated, [Signature of Judge or Justice.] 358 FORMS. No. 64. Order for Examination of Expected Party. Ante, i 82. COURT. 1 In the Matter of the Application of A. B. to Take and Perpetuate the Testimony of Y. Z. On the affidavit of , hereto annexed, and on motion of , attorney for the above-named A. B., it is Ordered, That the said Y. Z. appear before , referee hereby ap- pointed to take the examination of said Y. Z., at , in the of , N. Y., on the day of , 190.., at o'clock in the noon, then and there to be examined as to istate purposes and limitations of examination'] . It is Further Ordered, That service of this order be made upon said Y. Z. not more than twenty, nor less than five days before the date of the examination above stated. [// person to be examined is in custody, add:] And it appearing that said Y. Z. is confined in the jail \.or, prison]. It is Further Ordered, That the keeper of said jail [or, prison] produce said Y. Z. before said referee, at said jail \.or, prison] subject to the fol- lowing conditions [.naming them]. Dated, , [Signature of Justice or fudge.] No. 6s. Referee's Certificate of Examination of Party or Expected Party. Ante, § 82. Title of proceeding as in No. 64.] Deposition of Y. Z., taken by and before the undersigned, referee, under the provisions of section 870 [or, 871] of the Code of Civil Procedure, pur- suant to the annexed order, on the day of , 190. ., and on subsequent adjourned days, , Esq.. appearing for A. B., above named, and , Esq., appearing for the said Y. Z. Said Y. Z. was duly sworn by me, and on his examination by testified as fol- lows: [Here give the examination and cross-examination fully by question and an-swer.] [Signature of Witness.] Subscribed and sworn to before me, this ) day of 190. . j Ant I DO Hereby Certify that the foregoing deposition of Y. Z. was taken before me under and pursuant to the annexed order at the times FORMS. 359 as in said deposition set forth; that each and every answer of said Y. Z. upon said examination is fully set forth therein ; that I carefully read said deposition to said Y. Z. as it is written above, and that after such reading he subscribed the same in my presence. Referee. No. 66. Order of Reference to Take Proof on Default. Ante, § 83. At a Special Term, etc. {.Title of cause.'\ Upon the summons and complaint herein, and on the affidavit of , verified the day of , 190. ., and on motion of , attorney for the plaintiff above named, it is Ordered, That it be and hereby is referred to .., counselor-at- law, of , N. Y., to take proof of the matters alleged in the com- plaint in this action and to examine the plaintiff, or his agent, on oath, re- lating to said matters and respecting any payment which may have been made to said plaintiff or to any one for his use, and to report to this ccurt with all convenient speed. No. 67. Order of Reference to Ascertaifi Damages by Reason of an Injunction. Ante, § 84. At a Special Term, etc. Present — Hon , Justice. [Title of cause.] The motion for a reference to ascertain the damages sustained by the above named, by reason of the injunction granted in the above- entitled action, on the day of , 190. ., having been brought to a hearing at this time, and after hearing Mr. E. F., of counsel for , etc. [stating appearances and proceedings fully], it is Ordered, That it be and hereby is referred to C. J., E^q., counselor-at- law, of , N. Y., to ascertain what, if any, damages the said has sustained by reason of the said injunction, and to make report thereon with all convenient speed. 360 FORMS. No. 68. Report of Referee Determining Damages by Reason of Injunction. Ante, § 84. [Title of cause. ^ Pursuant to an order made in the above-entitled action and duly entered in the office of the clerk of the county of , N. Y., on the day of , 190.., by which it was referred to me to ascertain what, if any, damages the had sustained by reason of the in- junction issued herein on the day of , 190.., I do hereby respectfully report as follows : I. That on the day of , 190.., I was attended upon such reference by [here state appearances^. II. That before proceeding to execute said order I took and subscribed the oath prescribed by section 1016 of the Code of Civil Procedure, and the same is hereto annexed. III. I find that the said has sustained damages by reason of the said injunction as follows: By loss [here state each item of damages separately, which may include counsel fees and fees of the referee, and all other damages shownl, amounting in all to the sum of dollars. The evidence produced before me upon said reference is herewith re- turned. All of which is respectfully submitted. Dated, C. J., Referee. No. 69. Affidavit for Reference to Compute Amount Due. Ante, § 86. [Title of cause.] CITY AND COUNTY OF NEW YORK, jj..- A. B., being duly sworn, says, that he is attorney for the plaintiff in this action. That this action is brought for the foreclosure of a mortgage on cer- tain real estate in this county; that the mortgage is [describe it, and show whether it is all due]. That none of the defendants are absentees or infants (or as the cas^ may be]. That rw answer or demurrer to the complaint has been received from any defendant [if an infant defendant has served a general answer by his guardian, or if the issue raised by an answer has been tried and deter- mined in plaintiff's favor, it should be so stated here]. FORMS. 361 That on , at the time of filing the complaint herein, deponent filed in the office of the clerk of this county, where the mortgaged prem- ises are situated, a notice of the pendency of the action, etc. [in the lan~ guage of Rule 60]. Sworn, etc. No. 70. Order of Reference, Whole Amount Due. Ante, § 86. At a Special Term, etc. Present — Hon , Justice. [Title of cause. "[ It Appearing, That this action was brought to foreclose a mortgage, and that the whole amount secured thereby is acutally due, on filing proof of the personal service of the summons in this action on the defendant , more than twenty days since, and that no answer to the said complaint has been served by , or any of them, on motion of , attorney for the plaintiff, it is Ordered, That it be referred to , Esquire, residing in the of , to compute the amount due to the plaintiff for the principal and interest upon the bond and mortgage set forth in the complaint in this action No. 71. Referee's Report, Whole Amount not Due. Ante, § 87. COURT. [Title of cause. 1 To the Court : In Pursuance of an Order of this Court, made in the above-entitled action, on the day of , in the year one thousand eight hundred and , by which it was referred to the undersigned referee to ascertain and compute the amount due to the plaintiff upon and by virtue of the bond and mortgage mentioned and set forth in the complaint in this action; and also to ascertain and report the situation of the mortgaged premises, and whether, in his opinion, the same can be sold in parcels without injury to the interests of the parties; and if he shall be of opinion that a sale of the said premises in one parcel will be most beneficial to the parties, then that he report his reasons for such opinion : I DO Report, That I have computed and ascertained the amount due to the plaintiff upon and by virtue of the said bond and mortgage, and that 362 FORMS. I find, and accordingly report, that there is due to the plaintiff, for prin- cipal and interest on the said bond and mortgage, at the date of this my report, the sum of dollars. Schedule "A," hereunto annexed, shows a statement of the amounts due for principal and interest respectively, the period of the computation of the interest, and its rate. And I DO Further Certify and Report, That I have computed and ascertained the amount secured to be paid by said bond and mortgage, and which is not due and which remains unpaid, including interest thereon to the date of this, my report, and the same is the sum of dollars. Schedule " B," hereunto annexed, shows a statement of the said princi- pal and interest moneys respectively, the period of the computation of the interest, and its rate. And I DO Further Certify and Report, That I have ascertained the sit- uation of the said mortgaged premises, and am of the opinion that the same be sold in parcels, without injury to the interests of the par- ties. That my reasons for such opinion are as follows : Dated, the day of , 190. . Referee. Schedule "A." One bond dated the day of , 190. ., in the penal sum of $ , conditioned to pay $ as follows: ; which bond is accompanied by a mortgage of the same date. Principal sum due $ Interest upon $ from the day of 190.., being year month., and day, at seven per centum per annum, is $ Amount due plaintiff this day of , 19a. . . . Referee. ScHEDtn,E "B." Same bond and mortgage mentioned in Schedule "A." Principal sum secured not due $ Interest upon $ , from the day of , igo. ., being year.., month., and day.., is $ Whole amount secured, not due, including interest thereon to this date is $ Dated the day of , 190. . ■ * Referee. FORMS. 363 No. 73. Referee's Report, Whole Amount Due. Ante, § 87. COURT. [Title of cause.] To the : In Pursuance of an Order of this Court, made in the above-entitled action, on the day of , in the year one thousand nine hundred and , by which it was referred to the undersigned referee to ascertain and compute the amount due to the plaintiff upon and by virtue of the bond and mortgage mentioned and set forth in the plaintiff's complaint, which is filed in this action : I DO Report, That I have computed and ascertained the amount due to the plaintiff upon and by virtue of the said bond and mortgage, and that I find, and accordingly report, that there is due to the plaintiff for prin- cipal and interest on the said bond and mortgage, at the date of this, my report, the sum of dollars. Schedule "A," hereunto annexed, shows a statement of the amounts due for principal and interest respectively, the period of the computation of the interest, and its rate. Dated, the day of , 190. . Referee. Schedule "A." One bond dated day of , 190.., in the penal sum of $ , conditioned to pay $ , as follows: which is accompanied by a mortgage of the same date. Principal sum due $ Interest thereon from the day of , 190. ., being year.., month., and day. ., at seven per centum per annum, is $ Amount due plaintiff this day of , 190. Referee. No. 73. Notice of Motion to Confirm Report and for Judgment. Ante. § 88. [Title of cause.] Sir. — You will please take notice, that upon all the proceedings in this action, and upon the report of , referee, filed in the office of the deck of this court, o-n , a motion will be made, etc., for 364 FORMS. an order confirming the said report of the referee and granting to this plaintiff a final judgment of foreclosure and sale as demanded in hia complaint, and for such other relief as may be proper. Dated, Yours, etc., No. 74. Notice of Sale. nte, § 90. [Title of cause.] In pursuance of a judgment of foreclosure and sale made and entered in the above-entitled action on the day of , I, the under- signed, the referee named therein, will sell at public auction at , on the day of , at o'clock, . .M., by , auctioneer, the premises mentioned in said judgment, as follows: [Take in description]. Date, etc. A. B., Referee. C. D., Plaintiff's Attorney. No. 75- Terms of Sale. Ante, § 90. [Title of cause.] The premises described in the annexed advertisement of sale will be sold under the direction of , referee, upon the following terms : 1st. Ten per cent, of the purchase money of said premises will be required to be paid to the said referee at the time and place of sale, and for which the referee's receipt will be given. 2d. The residue of said purchase money will be required to be paid to the said referee at his office in the of , on the day of , when the said referee's deed will be ready for delivery. 3d. The referee is not required to send any notice to the purchaser ; and if he neglects to call, at the time and place above specified, to receive his deed, he will be charged with interest thereafter on the whole amount of his purchase, unless the referee shall deem it proper to extend the time for the completion of said purchase. 4th. All taxes, assessments, and water rates, which, at the time of sale, are liens or incumbrances upon said premises, which have not apparently become absolute, will be allowed by the referee out of the purchase money, provided the purchaser shall, previous to the delivery of the deed, pro- duce to the referee proof of such liens, and duplicate receipts for the payment thereof. FORMS. 365 Sth. The purchaser of said premises, or any portion thereof, will, at the time and place of sale, sign a memorandum of his purchase. 6th. The bidding will be kept open after the property is struck down, and in case any purchaser shall fail to comply with any of the above con- ditions of sale, the premises so struck down to him will be again put up for sale, under the direction of said , under these same terms of sale, without application to the court, unless the plaintiff's attorney shall elect to make such application ; and such purchaser will be held liable for any deficiency there may be between the sum for which said premises shall be struck down upon the sale, and that for which they may be purchased on the resale, and also any costs or expenses occurring on such resale. Dated, , 190.. Referee. Memorandum of Sale. have this day of , 190.., purchased the premises described in the above annexed printed advertisement of sale, for the sum of dollars, and hereby promise and agree to comply with the terms and conditions of the sale of said premises, as above men- tioned and set forth. Dated, , 190.. 190. . Received from , the sum of dollars, being ten per cent, on the amount bid by for property sold by me, under the judgment in the above-entitled action. Referee. No. 76. Referee's Report of Sale. Ante, § 91. [Title of cause. ^ To the Supreme Court of the State of New York: I, , the referee named in the judgment of foreclosure and sale, entered in this action on , do respectfully report as fol- lows : That I caused a notice of the sale of the mortgaged premises to be duly advertised by [state how advertised^, as appears by the affidavits of , hereto annexed. That pursuant to said judgment and notice and the law and the prac- tice in this court, the mortgaged premises described in the said judg- ment, and the notice of sale hereto attached, were sold at public auction under my direction and supervision on the day of 190. ., at in the of , N. Y. ; that at such sale became the purchaser of said premises for the sum of dollars, he being the highest bidder, and that being the highest sum 366 FORMS. bidden for the same. [// sold in parcels, state order of sale and amount each sold for.l That I have received from said the sum of dol- lars, being the amount bid by him as aforesaid, less [amount allowed for inctcmbrancesl, and that I have executed and delivered to him a deed of conveyance of said premises. And I do further report that I have paid out and disposed of said moneys as follows : I have retained the sum of dollars for my charges and the expenses of said sale. I have paid to , the attorney for the plaintiff, the sum of dollars, awarded to him by the judgment, for his costs, al- lowances, and disbursements herein, and I have also paid him the fur- ther sum of dollars, being the amount [or, on account of the amount], due to the plaintiff for principal and interest upon his mort- gage. And I have deposited the surplus of said moneys, remaining after de- ducting the aforesaid payments, being the sum of dollars, with the county treasurer of county [or, the chamberlain of the city of New York] to the credit of this action. And for all such payments I have obtained receipts, which are here- under annexed. [In case of deficiency.'] And I do further report that the proceeds of said sale were insufficient to pay the amount due to the plaintiff, and that the amount of the deficiency is the sum of dollars, with interest thereon from the date of this report. Dated, , Referee. [Attach receipts.] No. 77. O^der Confirming Report of Sale. Ante, § 91. At a Special Term, etc. Present — Hon , Justice. [Title of cause.] Upon reading and filing the report of Esq., the referee ap- pointed herein to sell the mortgaged premises, which report was filed in clerk's office of this county on and the proof of service of notice of the filing thereof on each of the defendants who have appeared in this action, and eight days having elapsed since such service, and no exceptions to said report having been filed, now, on motion of , attorney for the plaintiff, it is Ordered, That said report be absolute, and that it stand as in all things confirmed. FORMS. 367 No. 78. Notice of Claim to Surplus. Ante, § 93. [Title of cause.] Sir. — You will please take notice, that C. D., who resides at , is entitled to the surplus moneys, or some part thereof, arising from the sale of the mortgaged premises under the judgment of foreclosure and sale entered in this action. The nature and extent of the claim of the said C. D. is as follows : [State nature of lien.'] Dated, CD., Claimant. by A. B., his Attorney. No. 79. Affidavit as to Surplus Moneys. Ante, § 93. [Title of cause.] COUNTY OF , ss.: A. B., being duly sworn, says, he is attorney for C. D., who is a de- fendant in this action [or otherwise, as the case may be]. That the report of sale of , Esq., who, by the judgment herein, was appointed referee to sell the mortgaged premises, was filed in the office of the clerk of this court on , and that in such report it appears that after satisfying the claims of the plaintiff there remains a surplus of dollars, which has been deposited to the credit of this action with the [county treasurer, or city chamberlain], and that said C. D. has filed with the clerk of this court a notice stating that he is en- titled to such surplus money or some part thereof, and the nature and extent of said lien. That deponent has examined all the official searches made in the prog- ress of this cause, and filed with the judgment-roll, and that the following are the only unsatisfied liens that appear by such official searches [insert them], and that no other unsatisfied liens are known to deponent to exist. Sworn to, etc. A- B. No. 80. Notice of Motion for Reference as to Surplus. Ante, § 93. [Title of cause.] Gentlemen. — You will please take notice, that upon all the proceed- ings in this action and upon the annexed affidavit of A. B., the claimant, C. D., will apply to this court at a Special Term thereof, to be held at , on , at o'clock, . .M., ■'^or an order of refer- ence to ascertain and report the amount due to said C. D., or to any other 368 FORMS. person, which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon, and for such other and further relief as may be proper. Yours, etc.. Dated, etc. A. B., Attorney for Claimant, C. D. To , etc. [as provided by Rule . .]. No. 81. Order of Reference as to Surplus. Ante, § 3. At a Special Term, etc. ITitle of cause.^ On reading and filing the referee's report of sale in the above-entitled action, the affidavit of verified the day of , 190. ., showing the nature and extent of his claim to the surplus moneys herein, and notice of motion with due proof of service thereof, and after hearing , attorney for said claimant, for the motion, and , opposed. Ordered, That it be and hereby is referred to , counselor-at- law, of N. Y., to ascertain and report the amount due to said claimant, or to any other person, which is a lien upon said surplus moneys, and to ascertain the priorities of the several liens thereon, and that said referee make return of his proceedings under this order with all convenient speed. No. 82. Underwriting to Summons Issued by Referee in Surplus Proceedings. Ante, § 93. [For form of summons, see form No. 55, ante.] Underwriting. To ascertain the amount due to , or to any other person, which is a lien upon the surplus moneys in this action, and to ascertain the priorities of the several liens thereon. No. 83. Notice of Motion for Confirmation of Referee's Report in Surplus Proceedings. Ante, § 93. [Title of cause.] You will please take notice, that the report of , referee ap- pointed herein to ascertain and report as to the amount due to various FORMS. 369 claimants to the surplus money in this action, was filed in the office of the clerk of this court, on the day of , 190. ., and that upon said report the claimant, , will apply to this court, at Special Term, to be held, etc., for an order confirming said report, and directing the county treasurer of county [or, the chamberlain of the city of New York] to pay to , or his attorney, out of the surplus moneys, arising from the sale in this action, the sum of dollars, with interest thereon from the date of the report, together with the costs of these proceedings ; and for such other or further relief as may be proper. Yours, etc.. Dated, , Attorney for Claimant. To No. 84. Stipulation or Consent to Refer Action of Divorce. Ante, §§ 107, 108. {Title of cause.} This being an action for a divorce upon the ground of adultery [or, to annul a marriage upon the ground of , or, for a separation on the ground of ], and the same being at issue and ready for trial, it is hereby stipulated and agreed that a trial of the issues in this cause by a jury, be, and the same hereby is, waived. And it is further agreed that this action, and all the issues therein, be referred to some competent person to be named by the court, to hear and determine the same. Dated, , Plaintiff's Attorney. Defendant's Attorney. No. 85. Referee's Report in Action for Divorce. Ante, § no. {.Title of cause.} To the Supreme Court: Pursuant to an order of this court dated the day of , 190. ., whereby the issues of this action were referred to me to hear and determine, I, the undersigned, referee, do hereby respectfully report: That I have been attended by the parties and their respective attorneys ; that I have heard the proofs and allegations of said parties and their witnesses, and reduced the evidence to writing and return the same here- with. I find the following facts: First. That on the day of , 190. ., the plaintiff inter- married with the defendant at , in the State of 24 370 FORMS. Second. That since said marriage, and until about years ago, the said plaintiff and defendant cohabited as husband and wife. Third. That during said time they had children, the issue of said marriage [state names and ages of those now living^. Fourth. [State residence of parties at time of acts complained of.] Fifth. [State acts of adultery as established by evidence, giving time and place.] Sixth. That said acts of adultery and each of them were committed without the consent, connivance, privity, or procurement of the plaintiff. Seventh. That five years have not elapsed since the discovery by plain- tiff of the commission of said acts of adultery, and that plaintiff has not voluntarily cohabited with the defendant since said plaintiff discovered the fact of such adultery. Eighth. That the plaintiff has not been guilty of the act of adultery as charged in the answer of defendant. Ninth. That there is no judgment or decree in any court of competent jurisdiction dissolving the marriage contract between these parties. As Conclusions of Law I find : That the plaintiff is entitled to a judgment of divorce, dissolving the marriage between him and the defendant. Judgment is ordered accordingly. All of which is respectfully submitted. Dated, , Referee. No. 86. Notice of Application for Confirmation of Referee's Report to Hear and Determine in Matrimonial Action. Ante, § III. [Title of cause. 1 Take notice, that upon the report of the referee, a copy of which is herewith served upon you, the referee's minutes and the testimony thereto annexed, and upon the pleadings and all the papers and proceedings in this action, this court will be moved at the Special Term thereof, to be held at the in the of , N. Y., on the day of , 190. ., at the opening of court, or as soon there- after as counsel can be heard, for an order confirming said report of the referee herein, and for a decree of divorce dissolving the marriage be- tween the plaintiff and defendant herein, in conformity with the report of said referee, and for such further order or relief as the court may grant in the premises. Dated, Yours, etc.. Attorney for Plaintiff. To , Attorney for Defendant. FORMS. 371 No. 87. Order of Reference for Alimony Pendente Lite. Ante, § III (A). At a Special Term, etc. Present — Hon , Justice. [Title of cause.'\ On reading and filing the petition of , dated the day of , 190.., and the papers thereto attached, and forming a part thereof, and after hearing Mr , of counsel for said peti- tioner, and Mr , of counsel for the , reading affida- vits of and , in opposition, it is Ordered, That it be referred to , counselor-at-law, residing at , N. Y., to take proofs and ascertain and report to this court what would be a suitable allowance to the for her sup- port, having regard to the circumstances of the parties respectively, and from what date the same should be allowed, and at what time or times and in what manner the same shall be paid ; the said referee to have re- gard to the expenses of said , for counsel fees and otherwise in prosecuting [or, defending] this action, not taxable costs merely; that said referee also report what security, for the payment of such allowance by the said , would be reasonable and proper; and that he re- port the facts found by him of proof offered. That said referee report herein with all convenient speed, and, in the meantime, the petitioner has leave to renew her application for imme- diate allowance. No. 88. Referee's Report on Application for Alimony Pendente Lite. Ante, § III (A). [Title of cause.'] To the Supreme Court : Pursuant to an order of this court, dated the day of , 190. ., whereby it was referred to me to take proofs and ascertain and report to this court what would be a suitable allowance to the for her support, and from what date the same should be allowed, and at what time or times and in what manner the same should be paid, and what security for the payment of such allowance would be reasonable, I do hereby respectfully report : That I have taken proofs in this matter, on the part of the , which are hereto annexed, forming a part of this report, and that I find the following facts: First. That this action is brought for [here state purpose of the action]. Second. That the parties hereto were married on the day of , igo. . Third. That this action was commenced by the service of the summons upon defendant personally [or, by publication], and that issue has lor, has not] been joined herein. 372 FORMS. Fourth. That the is wholly without means of support or for the prosecution [or, defense] of this action, and is entirely dependent upon the for support and maintenance, and that he wholly neglects to provide therefor. Fifth. That the is a man of ample means [here state facts concerning his property], and that as near as can be ascertained his in- come amounts to about dollars per year. I report as my conclusions : That the sum of dollars per week would be a suitable allow- ance for the support and maintenance of the , for and during each week, until the final determination of this action; that the first pay- ment be made forthwith upon the confirmation of this report, and there- after weekly ; that the sum of dollars would be a suitable counsel fee to be paid by the to , the attorney for the , and that said sum be paid forthwith ; that the give security for the payment of the weekly sums above mentioned, as the same shall become due and payable, with surety, who shall justify in the sum of dollars, and be a resident house- holder within this State. All of which is respectfully submitted. Dated, , Referee. No. 89. Referee's Report against Alimony Pendente Lite. Ante, § III (A). [Title of cause.] [After statement of facts.] I report as my conclusions : That the is not entitled to, and should not be allowed, any alimony in this action, and that her application for the same should be denied on the grounds hereinbefore stated, and each and every of them, with the costs and disbursements of opposing same and of this reference. All of which is respectfully submitted. Dated Referee. No. 90. Order Confirming Referee's Report Allowing Alimony, Etc. Ante, § III. At a Special Term, etc. [Title of cause.] On reading and filing the report of , the referee herein, dated the day of , 190. ., with the testimony and order of ref- FORMS. 373 erence annexed thereto, and on due proof of service of a notice of motion to confirm said report, and on motion of , counsel for the , after hearing Mr , in opposition, it is Ordered, That the be allowed the sum of dollars per week for her support and maintenance, commencing with the day of 190.., and continuing until judgment in this action or other order of the court; and that she also be allowed the sum of dollars, as and for her expenses in conducting this action [or, defense of this action], and dollars, referee's fees. It is Further Ordered, That the said pay to the said , or her attorney, the sum of dollars, counsel fee, and dollars, referee's fees, immediately upon the service of this order ; and that he also pay to the said the sum of dollars, each week, during the continuance of this action. And it is Further Ordered, That upon the service of this order upon the , he enter into a bond with one [or morel surety in the sum of dollars, said surety to justify in the sum of dollars, and to be a resident house or real estate holder within this State, said bond to be conditioned for the payment of the said sums of money above mentioned, as the same shall become due and payable. No. 91. Notice of Rejection of Claim and Offer to Refer. Ante, i 114. To , Claimant: Sir. — You will please take notice, that I doubt the justice and validity of your claim of dollars against the estate of , de- ceased, and I hereby dispute and reject the same, and offer to refer it, pursuant to the provisions of the Code of Civil Procedure, to some suit- able person as referee, to be approved by the surrogate, to hear and deter- mine the same as provided by said Code. Dated, [Note. — If claim is rejected without offer to refer, the claimant may make the offer to the executor or administrator.] No. 92. Consent to Refer Claim against Decedent's Estate. Ante, § 114. Whereas, has lately presented a claim to the executor [or, administrator] of the estate of , late of the of , county of , N. Y., deceased, for the 374 FORMS. sum of $ , a copy of which is hereto attached, the justice of which said claim is doubted by the said executor, it is hereby stipulated and agreed by and between the undersigned, claimant, and the executor lor, administrator], as aforesaid, that the matter in controversy be re- ferred to , counselor-at-law, residing at , N. Y., as sole referee, to hear and determine the same * Dated, , Claimant. Executor [or. Administrator}. I approve of the referee named in the foregoing agreement. Dated , Surrogate. No. 93. Order of Reference of Claim against Estate. Ante, § 114. [Title.'] On reading and filing the annexed agreement to refer the claim of against the estate of , deceased, to , Esq., counselor-at-law, as sole referee, to hear and determine the same, and the approval by the surrogate of county, indorsed thereon, and on motion of , attorney for the said claimant [or, as executor, etc.], it is Ordered, That the said , Esq., be and he is hereby appointed referee to hear and determine all the matters in controversy, mentioned in said agreement. Dated, , Justice of the Supreme Court [or. County Clerk'\. [Note. — If the stipulation contains clause as to time, place, etc., of hear- ing, such provisions may be incorporated in the order.] No. 94. Oath of Referee. Ante, § 115. [See usual form of oath. No. 21, ante.] * Provision may be made in the stipulation and the^ order to be entered thereon for the time, place, and manner of bringing on the hearing. FORMS. 375 No. 95. Report of Referee on Claim against Decedent. Ante, § 116. ITitle.] To the Supreme Court of the State of New York: I, the undersigned, sole referee, appointed herein, by an order of this court bearing date the day of , 190. ., to hear and deter- mine the claim of against the estate of , deceased, and all the matters in controversy relating thereto, do hereby make re- port as follows : I. I have taken and subscribed the oath of office required by section 1016 of the Code of Civil Procedure, which is hereto annexed. II. That I have been attended by the parties and their counsel, , Esq., appearing for claimant, and Messrs , appear- ing in behalf of the executor. Having heard the proofs and allegations of the parties, and the arguments of counsel, I do find As Matters of Fact: First Second {etc., covering all findings of fact]. And as Conclusions of Law : First Second Third Fourth. That the said , plaintiff herein, is entitled to re- cover of the defendant, , as executor [or, administrator] of the estate of , deceased, the sum of dollars. Fifth. That the said , plaintiff, is entitled to recover the costs of this action from the said , as executor of said estate. Judgment is hereby ordered accordingly. Dated, , 190.. Respectfully submitted. Referee. ^iW The referee's oath should be annexed to his report. No. 96. Judgment on Report of Referee; Claim against Decedent. Ante, § 116. ITitle of court and cause.] The claim of the above-named against the estate of , deceased, having been duly presented to the above-named , the administrator [or, executor] of said estate, and the 37^ FORMS. same having been disputed and rejected by him, and by consent of the parties and with the approval of the surrogate, the same having been re- ferred to , Esq., as sole referee, to hear and determine the matters in controversy, pursuant to the provisions of the Code of Civil Procedure, and after trial had, on due notice to all the parties, the referee has made and filed his report, stating his findings of fact and conclusions of law thereon, and directing judgment thereon in favor of plaintiff and against defendant, for $ and costs, and an order having been made and entered herein on the day of , 190.., upon the certificate of the referee, awarding costs to the plaintiff, to be paid out of the property of the decedent [or, out of the individual property of the said , as administrator], and the plaintiff's costs having been duly adjusted at $ Now, on motion of , at- torney for the said claimant, as plaintiff, it is Ordered and Adjudged, That the said plaintiff, , do recover of the said , as executor of the last will and testament of , deceased, the sum of dollars, so found due by the referee, as shown by his report, and dollars interest thereon from the date of said report, together with dollars, costs and disbursements, amounting in all to the sum of dollars, to be levied and collected out of the goods, chattels, credits, and property be- longing to the estate of , deceased. No. 97. Order of Reference to Report Specific Questions of Fact. Ante, § 117. At a Surrogate's Court held in and for the County of , at the Surrogate's Court rooms in the of N. Y., on the day of , 190. . Present — Hon , Surrogate. SURROGATE'S COURT. [Title of the proceeding.'] Upon the petition of , verified on the day of , 190. ., praying for [here state the relief asked], and a citation having been issued to thereon requiring [here state substance of cita- tion], it is Ordered, That , counselor-at-law, residing at , N. Y., be, and he hereby is, appointed referee, to take proof of the facts set forth in the said petition, and report the evidence upon such facts, to this court; and that the first hearing before said referee take place at his office, in the of , N. Y., on the day of FORMS. 377 iPO-- lor, that the hearing before said referee be brought on, upon days' notice to all parties interested]. Surrogate. No. 98. Order of Reference to Examine Accounts. Ante, § 117. At a Surrogate's Court, etc. Present — Hon , Surrogate. SURROGATE'S COURT. In the Matter of the Judicial Settlement of the Account of , as Executor of the Last Will and Testament of , Deceased. , the executor of the estate of , late of the of , N. Y., deceased, having filed his accounts as such, and objection thereto having been filed by , it is Ordered, That it be and hereby is referred to , counselor-at- law, residing at , N. Y., to inquire and ascertain" as to all juris- dictional facts, to examine said account and the objections thereto, to hear and determine all questions arising upon the settlement of said ac- count which the surrogate has power to determine, and make report thereon to the court, with all convenient speed. [Provision may be made for bringing on the hearing as in No , dbove.'l Surrogate. No. 99. Referee's Report upon Examination of Account. Ante, § 117. [Title as in No ] To the Surrogate's Court of the County of : I , the referee in the above-entitled proceeding, pursuant to an order, made herein, and dated the day of , 190.., directing me to examine the account filed herein, and determine all ques- tions arising upon the settlement thereof, and report thereon, do hereby respectfully report as follows : I. That before proceeding to execute said order, I took the oath pre- scribed by law, which is hereto annexed. II. That I was attended upon the hearings before me by [here state ap- pearances'] ; and the following witnesses were sworn and testified before 378 FORMS. me [give names of witnesses^ ; that I have examined the said account and the vouchers as presented by the executor [administrator, or, guardian] herein, and find the same to be complete, regular, and correct in all re- spects; that annexed hereto are schedules showing the amounts with which said is properly chargeable and the items with which he is entitled to be credited [or such other report as the facts may show]. Dated, Respectfully submitted. Referee. Schedules to be Attached to Foregoing. Said executor [administrator, or, guardian] is chargeable with the fol- lowing accounts : To amount of inventory $ To increase as follows : Sales of property not inventoried $ From note inventoried as worthless. ... $ (Other items of increase) $ $ Total $. And he is entitled to be credited with the following sums: By decrease as follows: Loss on sales $ Loss on account, inventoried at $ , $ (Other items of loss) $ $. By expenses $. By taxes paid $. Leaving balance Referee. [Note. — This form is suggested as a brief general form and may be varied to suit conditions.] No. loo. Report of Referee of Facts with the Evidence. Ante, § 119. SURROGATE'S COURT. In the Matter, etc. [or other title, as may be]. To the Surrogate's Court of the County of : I , the referee in the above-entitled proceeding, pursuant to an order, made herein, and dated the day of , 190.., directing me to take proof of the facts set forth in the petition herein FORMS. 379 and report the evidence of such facts to the court, do hereby respectfully report as follows : I. That before proceeding to execute said order, I took the oath pre- scribed by law, which is hereto annexed. II. That I have been attended by [here state appearances], and taken the proofs produced by the respective parties, upon the facts alleged in the petition, all of which is hereto annexed, and herewith returned as part of this report. Dated, Respectfully submitted. Referee. No. loi.* Consent to Reference in Proceedings for Probate or Revocation of Pro- bate of Will. Ante, § 120. '[Title of proceeding.] A petition for the probate of the will of late of N. Y., deceased, having been filed in the office of the surrogate of the county of , and objections to the probate of such will having been filed by , it is Hereby Stipulated and Agreed, That the questions at issue herein be referred to , counselor-at-law, residing at , N. Y., to hear and determine the same subject to confirmation by the surrogate, and that the order to that effect be entered upon filing this stipulation. Dated, Attorney for Executor. Attorney for Contestant. No. 103.* Order of Reference by Consent. Ante, § 120. At a Surrogate's Court, etc. Present — Hon , Surrogate. SURROGATE'S COURT. In the Matter of Proving the Last Will and Testament of , Deceased. On reading and filing the stipulation in the proceeding above entitled, dated the day of , 190. ., and on motion of attorney for the executor, it is •Applicable to New York county only. ^8o FORMS. Ordered, That the issues herein be and the same hereby are referred to to hear and determine, subject to confirmation by the surro- gate, and that said report to the court with all convenient speed. [Directions may be added as to the time, place, and manner of bringing the matter to a hearing.^ Surrogate. No. 103. Report in Probate Proceedings. Ante, § 120. \Title of proceeding.'] To the Surrogate's Court of the County of New York: Pursuant to an order of this court, duly entered herein on the day of , 190. ., whereby it was referred to me to hear and de- termine the same, subject to confirmation by the surrogate, I do hereby respectfully report : I. That I took the referee's oath as prescribed by section 1016 of the Code of Civil Procedure, which oath is hereto annexed. II. That I have been attended by Vhere state appearances']. III. That I have taken testimony which is annexed hereto and re- turned herewith, and forms a part of this report. I find as Matters of Fact: I. That [here state finding as to execution of will]. II. That he then and there declared the paper so signed to be his last will and testament. III. That he requested the subscribing witnesses to sign as such wit- nesses, which they did, at his request, in his presence, and in presence of each other. IV. That at the time of the execution of said will the said was of sound mind and memory. V. That the said will is in the handwriting of ; that it was prepared according to the instructions of the said , and that it was read over to him before its execution. I find as Conclusions of Law : That the said instrument, propounded as the will of , de- ceased, was duly executed as required by the provisions of the statutes in such case made and provided ; that the decedent had full testamentary capacity; and that the objections herein should be overruled, dismissed, and set aside, and the said will admitted to probate. Dated, , Referee. [Note. — If the findings of fact are adverse to the validity of said will, the final conclusions of law may be stated as follows : That the paper writing propounded as the will of , deceased, was not executed FORMS. 381 as required by the provisions of the statute in such case made and pro- vided lor, that the decedent was not of full testamentary capacity, etc.], and that said instrument should be rejected and probate thereof refused.] No. 104. Affidavit to Obtain Order for Judgment Debtor to Appear and Answer, etc. Ante, § 121. COURT. 1 against J COUNTY OF w.; , being sworn, says : I am , the judgment creditor hereinafter named, and am authorized by h. . to institute and conduct these proceedings. That judgment was rendered and perfected in this action in favor of against on the day of , 190.., for dollars, and cents damages, and dollars costs upon the judgment debtor's personal appear- ance or personal service of the summons upon , and the said judgment was docketed, and the judgment- roll therein filed in the office of the clerk of the county of on that day ; that a transcript of the original docket of said judgment was filed, and said judgment duly docketed in the office of the clerk of the county of on the day of , 190. .. That an execution against the property of the said was on the day of 190 . . , duly issued upon said judgment, and delivered to the sheriff of the county of , where the said then resided and yet reside. ., ha. . a place for the regular transaction of business in person [if nonresident, omit statement as to residence and add in blank the facts required by sec- tion 2458], and that the said sheriff has duly returned the said execution unsatisfied. [If the time stated, of issuing execution, is not within Hve years from the rendition of the judgment insert (§ 1377) as follows: " That an execution was issued upon such judgment within five years after the entry of the judgment and has been returned un- satisAed and unexecuted" or "that an order was duly made by this court, on the day of , 190. ., granting leave to issue an execu- tion upon said judgment." If proceeding be under section 2436, allege demand as required.'] That such return was made within ten years. That the said judgment remains unpaid and unsatis- 382 FORMS. fied That no previous application has been made for the order asked hereon. Subscribed and sworn to before me, this j day of , 190. . I No. 105. Order to Examine Third Person as to Property of Judgment Debtor^ Ante, § 121. COURT. against COUNTY OF , ss.: It Appearing to me, By the affidavit of that judgment has been recovered in this action in favor of said against said , rendered upon the judgment debtor., personal appearance or personal service of the summons upon for a sum not less than twenty-five dollars exclusive of costs, and that an execution against the property of the said , the judgment debtor. . in this action, has been duly issued to the sheriff of the proper county upon the judgment herein, and returned unsatisfied. That said execution was so returned within ten years [omit if execution not returned'] ; and that has property of the judgment debtor, is indebted to in an amount exceeding ten dollars. I DO Hereby Order and Require the said to appear before , hereby appointed a referee for that purpose, at , in the of , on the day of , 190. ., at o'clock, in the noon, to be examined and answer concerning the same. And the said and the said are hereby severally forbidden and enjoined from making or suffering any transfer or other disposition of, or interference with, the property of said not exempt from levy and sale by virtue of an execution, or the property or debt concerning which said is required to attend and be examined, until further direction in the premises. (aII subsequent proceedings shall be had before Hon , a justice of the judicial district in which the judgment debtor resides.) [Omit if debtor resides in same district as judge.] Dated, the day of , 190. .. FORMS. 383 Indorsement on Foregoing. To Take notice of an order duly granted, of which the within is a copy» founded upon an affidavit with a copy whereof you are herewith served. Yours, etc., Attorney for Office address, , New York. Post-office address, , New York. No. 106. Order Debtor to Appear Before Referee. Ante, § 121. COURT. ■^ against J COUNTY OF , .fj..- It Having been made to Appear to Me by the affidavit of that judgment has been recovered in this action in favor of said against the said , rendered upon the judgment debtor., per- sonal appearance or personal service of the summons upon , for a sum not less than twenty-five dollars exclusive of costs, and that an execution against the property of the said has been duly issued to the sheriff of the proper county upon the aforesaid judgment; and that such execution has been returned by the said sheriff unsatis- fied , and that such judgment still remains unpaid , as stated and set forth in said affidavit : I do, therefore, hereby order that it be referred to , Esq., of , to examine the said , and take answers on oath concerning property, and to reduce such answers and examination., to writing; and also to examine on oath such witnesses as may be offered by the re- spective parties, and reduce such examination to writing, and report such answers and examinations, and all his proceedings under and by virtue of this order, to me, with all convenient speed. And I do hereby appoint the said a referee in this action for the purposes aforesaid. And I DO also Further Order and Direct the said to appear before the said referee, at , in the of , on the day of , 190.., at o'clock in the noon, to answer before said referee concerning property as aforesaid ; and for that purpose to appear before the said referee from time to time, aa he shall direct and appoint. 384 FORMS. And the said hereby forbidden from making or suffering any transfer or other disposition of, or interference with, the property of not exempt from levy and sale by virtue of an execution, until further direction m the premises. (All subsequent proceedings shall be had before Hon , a jus- tice of the judicial district in which the judgment debtor. . reside.) [Omit if debtor resides in same district as judge.] Dated the day of , 190.. Indorsement on Above. To : Take notice of an order duly granted, with a copy whereof you are herewith served, founded upon an affidavit with a copy whereof you are herewith served. Yours, etc.. Attorney for Office address, , New York. Post-office address, , New York. No. 107. Affidavit to Obtain Order to Examine Judgment Debtor on Justice's Judgment. Ante, § 121. COUNTY COURT. against STATE OF NEW YORK, ) County of , | , being duly sworn, says, that judgment was duly recovered in favor of , plaintiff, against , defendant, on the day of , 190. ., before , Esq., a justice of the peace of the of , county of , and State afore- said, for dollars and cents damages, and dollars and cents costs, amounting in all to dollars and cents, upon the judgment debtor. . personal appearance or personal service of the summons upon That a transcript of said judg- ment was duly filed in the office of the clerk of county, on the FORMS. 385 day of , 190. ., and said judgment duly docketed therein against said defendant, That an execution against the property of the said was on the day of , 190. ., duly issued upon said judgment and delivered to the sheriff of county, where the said then resided and yet reside. ., and ha. . a place for the regular transaction of business in person. [If a nonresident, erase statement as to residence and add in blank the facts required by section 2458.] That the said sheriff has duly returned said execution to the county clerk's office unsatisfied ; that such return was made within ten years, and that the said judgment remains unpaid and unsatisfied. That he authorized by the plaintiff. . to commence these proceed- ings. That no previous application has been made for the order asked " hereon. Subscribed and sworn to before me, this ) day of , 190.. i No. 108. Order Debtor to Appear Before Referee. Ante, § 121. COUNTY COURT — County of 1 I against y I I J It Having been made to Appear to Me by the affidavit of that judgment was duly recovered in favor of , plaintiff, against defendant, on the day of , 190. ., be- fore , Esq., a justice of the peace of the of , county of , and State aforesaid, for dollars and cents damages, and dollars and cents costs, amounting in all to dollars and cents, upon the judgment debtor. . personal appearance or personal service of the summons upon That a transcript of said judgment was duly filed in the office of the clerk of county, on the day of , 190.., and said judgment duly docketed therein against said defendant and that an execution against the property of the said has been duly issued upon the aforesaid judgment to the sheriff of the county of where said then resided and still reside.., and ha. . an office for the regular transaction of busi- ness in person; and that such execution has been returned by the said sheriff unsatisfied , such judgment still remains unpaid That such return was made within ten years, 25 386 FORMS. , as stated and set forth in said affidavit..: I do, therefore, hereby order that it be referred to , Esq., of , to examine the said , and take answers on oath concerning property, and to reduce such answers and examination. . to writing; and also to examine on oath such witnesses as may be offered by the re- spective parties, and reduce such examination to writing, and report such answers and examinations, and all his proceedings under and by virtue of this order, to me, with all convenient speed. And I do hereby appoint the said , a referee in this action for the purposes aforesaid. And I DO ALSO Purther Order and Direct the said to ap- pear before the said referee, at in the of , on the day of , 190. ., at o'clock in the noon, to answer before said referee concerning property as aforesaid ; and for that purpose to appear before the said referee from time to time, as he shall direct and appoint. And the said hereby forbidden from making or suffering any transfer or other disposition of, or interference with, the property of not exempt from levy and sale by virtue of an execution, until further direction in the premises. Dated, the day of , 190. .. Indorsement on Order. To Take notice of an order duly granted, of which the within is a copy founded upon an affidavit with a copy whereof you are herewith served. Yours, etc.. Attorney for Office address, , New York. Post-office address, , New York. No. 109. Referee's Oath in Supplementary Proceedings. Ante, § 122. COURT — County of "1 Plaintiff, against \- , Defendant. ^_J STATE OF NEW YORK, j ^^ . County of , ) being duly sworn, doth depose and say, that he is the referee appointed by the order of Hon judge, in proceedings suppie- FORMS. 387 mentary to execution in the above-entitled action, dated the day of , 190..; that deponent will faithfully and fairly discharge his duty upon the reference herein, and will make a just and true report ac- cording to the best of his understanding. Sworn to before me, this . . . day of , 190. . No. 109a. Subpoena in Supplementary Proceedings. Ante, § 122. The People of the State of New York, to , Greeting : We command you and each of you, that all and singular business and excuses being laid aside, you and each of you be and appear and attend before the undersigned referee, at the , in the of , N. Y., on the day of , 190. ., at o'clock in the noon, then and there to testify and give evidence in proceed- ings supplementary to execution, under a judgment obtained by against , upon the examination of said , pursuant to an order made by Hon , Justice of the Supreme Court [or, county judge], and for a failure to attend you will be deemed guilty of a contempt and liable to pay all loss and damages sustained by the party ag- grieved and forfeit fifty dollars in addition. Witness my hand this day of , 190. . E. D. S., Referee. Attorney for No. no. Order for Examination of Third Party in Attachment Proceedings under § 651, Code of Civil Procedure. Ante, § 124. SUPREME COURT. against J. A. and H. A. From 40 App. Div. 137; 57 N. Y. Supp. 614. It appearing to me, the undersigned, a justice of this court, by the affidavit of , hereto annexed, that there is sufficient grounds therefor, and on motion of , attorney for plaintiff, it is 388 FORMS. Ordered, That A. B. & Co. attend on the day of , 190. ., at ten o'clock in the forenoon of that day, at No , street, in the of N. Y., before and at the office of , Esq., counselor-at-law, who is hereby appointed referee for the purposes of this order, and the proceedings under it, and that the said A. B. & Co. then and there, and upon such other days thereafter as said referee may direct and appoint, submit to an examination under oath touching any property or interests of the defendants, or either of them, as mentioned or referred to in sections 650 and 651 of the Code of Civil Procedure. Dated, W. D. D., /. 5. C. No. III. Referee's Oath under Code of Civil Procedure, § 651. Ante, § 125. [Title of cause. "[ STATE OF NEW YORK, j ^^ . County of , j I, , the referee appointed by an order made herein by Hon. , justice of the Supreme Court, and dated the day of , 190.., to examine third persons, under oath, as to the prop- erty of the defendants in their possession, do solemnly swear that I will faithfully and fairly hear the testimony and determine the questions re- ferred to me to the best of my ability and understanding. Sworn to before me, this day of , 190 ■r\ No. 112. Referee's Report upon Examination of Third Party in Attachment. Ante, § 125. [Title of caused To the Supreme Court of the State of New York: It having been referred to me, as referee, to examine, under oath, third persons, touching the property of the defendants as attachment debtors herein, by an order of Hon , justice of the Supreme Court, dated the day of , 190. . I first took the oath required by law, and the following were had. [Here state fully the proceedings, the witnesses sworn, and testimony complete, which should be subscribed by the witnesses, noting all adjournments and directions for further ap- pearance, with findings of fact and conclusions of law.] All of which is respectfully submitted. Dated, , Referee. FORMS. 389 No. 113. Referee's Subpana under Reference in Attachment Proceedings. Ante, § 125. See Form No. 109a. No. 114. Petition for Examination under Section 21 of "General Assignment Law." Ante, § 127. COUNTY COURT. In the Matter of the Assignment 1 of A. B. to J. K., for Benefit of Creditors. To the County Court [or. Judge] of the County of : The petition of J. K., the assignee herein, respectfully shows : I. That on the day of , 190. ., the above-named A, B. made and executed a general assignment of all his property for the benefit of creditors ; that said assignment was duly filed and recorded in the office of the clerk of the county of , on the day of , 190. ., and that your petitioner has accepted the trust created in and by said assignment, and has duly qualified as such assignee and entered upon the discharge of his duties as such, II. That the said A. B, has wholly failed and neglected to [here state the omissions complained ofl. III. [If the examination of other persons than the assignor are desired, state names, residence, and show the knowledge possessed by the party to be examined regarding the subject-matter.^ IV. That no previous application has been made herein for an order for examination of any person named herein. Wherefore, Your petitioner prays, that an order may be issued direct- ing that said A. B,, assignor (E, C. and J. D., third persons), appear and submit to an examination on oath, and render or disclose any and all knowledge or information that he [or, they, or either of them] may pos- sess, necessary to the proper preparation and completion of the inventory and schedules required by law to be made, and that the said A. B. [E, C. and J. D,, or either of them] may be required to produce [giving com- plete list of books, papers, vouchers, etc., required]. Dated, [Signature.] [Add verification.] 39° FORMS. No. 115. Order for Examination of Assignor, or Third Persons. Ante, § 127. COUNTY COURT. [Title.'] On reading and filing the verified petition of J. K., the assignee herein [and such other papers as are deemed necessary], and on motion of of counsel for said petitioner, it is Ordered, That the assignor above named Vor, the third person named in the petition] be, and they hereby are directed to appear before , as referee, who is hereby appointed for the purpose, at the office of said referee, in the of , N. Y., on the day of , 190. ., at o'clock in the noon of that day, and then and there submit to an examination relative to any knowledge he [or, they, or either of them] may possess concerning the assigned estate, and which may be necessary to the proper preparation and completion of the inventory and schedules to be filed herein, or that may aid the proper execution of the trust created by said assignment. It is Further Ordered, That the said be, and hereby is, directed to produce [here name particularly the books, papers, or vouchers required.] Dated, County Judge. No. 116. Order of Reference on Assignee's Accounting. Ante, § 129. At a Special Term of the County Court of the county of , held at the , in the of , N. Y., on the day of , 190. .. Present — Hon , County Judge. COUNTY COURT. In the Matter of the Final Ac- counting of , as Assignee of , for the Benefit of Creditors. The above-named assignee for benefit of creditors of having made and filed his accounts as such assignee herein, FORMS. 391 on the day of , 190. ., and a petition having been duly made praying for an order to be granted for citations to be issued to all persons interested in said estate, and said order having been granted and entered, and the said citations having been duly issued thereon: Now, on reading and filing the said citation and proof of due notice thereof, and of service on all persons interested herein; and the said , appearing by , his attorney, and having presented his account of proceedings as such assignee, and objection thereto having been made and filed by , and on application of , attorney for said assignee. It is Ordered, That it be referred to , Esq., counselor-at- law, residing at , N. Y., to take and state the accounts of the said assignee of his proceedings as assignee of the said assigned estate, with authority to the said , referee, to examine the parties and witnesses on oath in relation to the said assignment and accounting, and all matters connected therewith, and to compel their attendance for that purpose, and to compel the production of such books and papers as may be required herein. It is Further Ordered^ That said referee take proof and report as to what persons are entitled to share in the distribution of said assigned estate, and in what priority and proportion. And it is Further Ordered, That any party to this proceeding, and any creditor may object to any claim presented before the said referee, and that the said referee shall thereupon take the proof and report as to the validity of such contested claims. And it is also Further Ordered, That the said reference proceed at the office of the referee, and that days' notice of the time and place of the first hearing be given to all creditors who have presented their claims to the said assignee, or who have appeared upon the return of said citation. County Judge. No. 117.' Referee's Report on Assignee's Accounting. Ante, § 129. COUNTY COURT. ITitle.] To the County Court of the County of I, , referee appointed herein by an order of this court, dated the day of , 190. ., to take and state the accounts of the above-named assignee, do respectfully report that I have taken and sub- scribed the oath required of a referee, by section ioi5 of the Code of Civil Procedure, and proceeded to take the proofs, and after carefully 392 FORMS. examining the evidence before me, which is hereto annexed, I find as follows : I. That on the day of , 190.., the above-named executed and acknowledged an instrument in writing whereby he assigned all his property to the above-named , as assignee for the benefit of his creditors. That said assignment was duly recorded in the office of the clerk of the county of , on the day of , 190... II. That the inventory and schedules required by law to be made and filed were, on the day of , 190. ., duly filed in the office of the clerk of county. That the liabilities were shown to be $ , with nominal assets of $ , and actual assets of $ That on the day of , igo. ., the as- signee herein was ordered by Hon , county judge of county, to file a bond in the penal sum of $ III. That the said assignee did, on the day of , 190. ., present to Hon , county judge of county, his bond, with , residing at , and , residing at , as sureties, in the penal sum of $ That said bond was, on the day above named, duly approved by said judge, and filed in the office of the clerk of county. IV. That said assignee duly advertised for creditors to present their claims, with vouchers, duly verified, to him, as authorized by an order granted by this court on the day of , 190. .. V. That said advertisement was published as directed, commencing on the day of , 190. ., and a copy thereof is hereto at- tached. VI. That a copy of said advertisement was mailed to each creditor, whose name appeared on the books of the said , assignor, as required by law. VII. That the following claims have been presented to the assignee, with proper proof attached to each, viz. : NAME. Address. Remarks. VIII. That on the day of , 190.., the said assignee made and rendered his account, duly verified, as assignee herein. Said account was as follows : Dr. Amount of inventory, goods, stock, etc $ Amount of inventory, accounts $ Amount of increase by , $ Total $. FORMS. 39S Cr. Expenses incurred Dividends paid Decrease Commissions of assignee. Balance IX. That on the day of , 190. ., an order was made by this court directing a citation to issue to all persons interested, requiring them to appear and attend the final settlement of the assignee. That said citation was duly issued, and made returnable on the day of , 190. ., and said citation was ordered served by publication in [name paper in which published']. X. That on the return day of said citation, the following-named per- sons appeared in this court : [Here insert names.] XL [// objections to account were Med, here insert them in detail.] XII. That in pursuance of an order of reference made herein on the day of , 190. ., I was appointed referee to take and state the accounts of the assignee herein ; I issued a summons to all creditors who had appeared herein to attend before me, at my office, on the day of , 190. .. XIII. That the following-named persons appeared, in person or by counsel : [Here insert names of persons and counsel who appear.] XIV. That the said assignee, immediately after accepting the trust and being qualified by law, proceeded to discharge the duties imposed upon him, and I find that he has sold of the said assigned property, as follows : [Here insert items of property sold, with inventory price and selling price, showing gains and losses.] ITEMS OF PROPERTY SOLD. Inventory Talue. Selling price. Increase. Decrease. J65 00 50 00 8 00 $84 00 40 00 8 00 819 00 810 00 and that said sales produced the sum of dollars ($ ). I also find that he collected from book accounts and from other sources the sum of dollars ($ ), as follows : [Here state col- lections, showing amount in accounting, amount collected, with gains or losses in form as above.] 394 FORMS. ACCOUNTS AND NOTES COLLECTED. Inventory value. Amount collected. Increase. Decrease. Note against C. K $500 00 100 00 25 00 16 00 J530 00 20 00 2S00 $30 00 Note against A L JSO 00 Account against B. Y Account against L. R 16 00 That the amount derived from sales and collections and from all sources amounted to the sum of dollars ($ ) . That the assignee expended, as appears by his accounts, the sum of $ , and I find that said sum was properly and necessarily ex- pended in the execution of the trust. XV. That I find his accounts should be stated and I hereby do state them as follows : Dr. Amount of inventory, goods, stock, etc $ Amount of inventory, accounts $ Amount of increase by $ Total Cr. Expenses incurred Dividends paid creditors Decrease of stock, etc. . . Commission of assignee . Balance All of which is respectfully submitted. Dated, Referee. No. 1 1 8. Agreement to Refer Controversy under Insolvent Debtors Act. Ante, § 131. SUPREME COURT. The People of the State of New York against The Saint Nicholas Bank. j From 150 N. Y. 363. y In the Matter of the Claim O. Mills. J im of D. ! J having presented a claim to temporary receiver of [or, other trustee] for [here state substance of claim'\, a FORMS. 395 copy of which claim is hereto annexed, and a controversy having arisen between the said receiver and the said , claimant touching the allowance and payment thereof, Now, Therefore, pursuant to statute, it is hereby stipulated by this writing to that efiect, signed by them, that the said controversy be- tween said receiver and said , claimant, be and the same hereby is referred to Esq., an indifferent person, pursuant to statute in such case made and provided. Dated {Signatures of parties to controversy.] No. 119. Order of Reference of Controversy under Insolvent Debtors Act. Ante, § 131. At a Special Term, etc. Present — Hon , Justice. ITitle of cause as above.] On reading and filing the annexed stipulation and agreement to refer controversy Ordered, That it be referred to , Esq., as sole referee, to hear and determine the matter in controversy between as receiver herein, and , claimant above named, pursuant to the statute in such case made and provided. Enter this order in county. No. 120. Referee's Report on Reference of Controversy under Insolvent Debtors Act. Ante, § 132. \Title of case as above.] To the Supreme Court of the State of New York: I, , the referee named in an order of this court, entered on the day of , 190.., in the office of the clerk of the county of , by which it was referred to me, as sole referee, to hear and determine the matters in controversy between as temporary receiver herein, and , above named, pursuant to the statute in such case made and provided, do hereby report : That before proceeding with the hearing of the matters so referred, I took and subscribed the oath prescribed by law. That I was attended on such hearing by , attorney for said receiver, and by , attorney for said , claimant. That T, thereupon, heard the proofs of the respective parties and examined the 396 FORMS. claim of the. said , filed with said receiver, and also examined, under oath, such witnesses as were produced before me touching the matters referred, and their testimony and the documents offered in evi- dence are hereto annexed, and I make the following Findings of Fact: First. [Here give the findings of fact in full.] I find as conclusions of law. [Here state same.] All of which, together with the testimony taken and the exhibits put in evidence, is respectfully submitted; and annexed hereto is a stipulation signed by the attorneys for both parties, waiving the signing of the testi- mony of the several witnesses, together with other stipulations. Dated, Referee. No. 131.* Notice of Application before Referee for Commission. Ante, § 132. See footnote 11. SUPREME COURT. [Title of case as in No ] Please take notice, that application will be made by the to , Esq, the referee herein, at his office. No street, in the of , N. Y., on the day of , 190. ., at o'clock in the noon for a commission to issue directed to , at the of , in the county of , N. Y., to examine , of the same place, as a witness on behalf of the [trustee, receiver, or, claimant] in the controversy now pending before said referee, upon interrogatories to be annexed to said commission. Dated, A B., Attorney for To C. D., A ttorney for No. 123. Affidavit for Commission. Ante, § 132. [Title as in No ] STATE OF NEW YORK, ) ^ . County of , f , being duly sworn, says, that he is the [trustee, receiver, or claimant], and a party to the controversy now pending before , * Forms Nos. 121 to 124, inclusive, are adapted from Dugan's Law and Practice for Justices of the Peace and Police Justices, Vol. I. FORMS. 397 Esq., as referee; that due notice of an application for a commission has leen personally served upon the herein as more fully appears by the annexed notice and affidavit of service thereof ; that of the of in the county of , this State, is a necessary and material witness for the , in the hearing before said referee; that deponent cannot safely proceed to the trial of said controversy without the testimony of said' witness, and that the said is not within this county of Subscribed and sworn to before me, this ) day of , 190. . . ( No. 123. Commission. Ante, § 132. > ss. : SUPREME COURT. ITitle as in No ] STATE OF NEW YORK, County of , The People of the State of New York, to of the of , in the county of and State of New York: Whereas, It appears to the undersigned, referee, duly appointed to hear and determine the matters in controversy between as receiver Lor, trustee] and claimant, by the affidavit of , one of the parties to said controversy, that one of the of and county of N. Y., is a necessary and material witness for said upon the hearing and trial of said controversy : Now, Therefore, We do appoint you commissioner, and authorize you, as such commissioner, to examine the said witness under oath, upon the interrogatories hereto annexed ; to take and certify the deposition of said witness; and to return the same by mail, addressed to me according to the directions contained in the sections of the Code of Civil Procedure, copies of which are hereto annexed. The said commissioner will return said commission to me at , in the county of , and State of New York, by mail, on or before the day of , 190. .. Dated, , Referee. [Note. — Annex a copy of sections 901 and 902 of the Code of Civil Procedure. A commission to examine witness orally may be adapted from this form.] 39^ FORMS. No. 124. Interrogatories and Cross-Interrogatories. Ante, § 132. SUPREME COURT. [Title as in No ] Interrogatories to be administered to , a witness to be ex- amined under the annexed commission, on behalf of the , in the above-entitled proceeding. First. [Here insert the interrogatories.] [Signature of party seeking the commission or his attorney.] Cross-interrogatories to be administered to , a witness to be examined under the annexed commission, on behalf of the , in the above-entitled proceeding. First. [Here insert the cross-interrogatories.] [Signature of opposing party or his attorney.] I hereby settle the foregoing interrogatories and cross-interrogatories. Dated, this day of , 190. .. Referee. No. 125. Petition. Ante, § 134. SUPREME COURT. In the Matter of the Application of A. B., to Discover the Death of J- C. D., Tenant for Life. J To the Supreme Court of the State of New York : The petition of A. B. respectfully shows: I. That on the day of , 190. ., one C. K. died at the of , in the county of , N. Y., seized and possessed of the following described real estate [here insert description]. That by the will of the said C. K., duly admitted to probate and recorded in the office of the surrogate of said county of , in Liber of Wills, at page , and in the office of the clerk of the said county of , in Book of Deeds, No , at page , a copy of which said will is hereto annexed, there was devised to your petitioner an estate in fee in the said premises upon the death of one C. D. FORMS. 399 II. That your petitioner is informed and believes that said C. D. is dead. That the grounds upon which your petitioner's belief is founded are as follows : [Here state same.] TIL That one R. Y. is now in possession of the premises aforesaid, claiming to be a tenant under the said C. D. That this is the first and only application made by your petitioner for the order herein requested [or, if former applications have been made, that no application for this order has been made within one calendar year from the day of , 190. .]. Wherefore your petitioner prays for an order directing the produc- tion of the said C. D., by the said R. Y., and for such other or further relief as may be just. Dated, A_ B_ STATE OF NEW YORK, ^^^ . County of \' A. B., being duly sworn, deposes and says that he is the petitioner named in the foregoing petition by him subscribed, and that the matters of fact therein set forth are true. A. B. Sworn to before me, this . day of , 190. . 1 No. 136. Notice of Presentation of Petition. Ante, § 134. [Title of proceeding.'] To R. Y., occupant of the premises described in the petition hereto annexed: Take notice, that the petition of A. B., a copy of which is hereto annexed, will be presented to the Supreme Court, at a Special Term thereof, to be held at in the of , N. Y., on the day, of , 190. ., at the opening of court on that day, or as soon thereafter as counsel can be heard, and an application will be made for an order directing you to produce the life tenant, as the court shall order. Dated, Yours, etc., F. T., Attorney for Petitioner, etc. 400 FORMS. No. 127. Order of Reference. Ante, § 134. At a Special Term, etc. Present — Hon , Justice. ITitle.^ On reading and filing the petition of A. B., verified the day of , 190 • •, praying for an order requiring the production of the above-named life tenant, it appearing that a copy of said petition, in- cluding the affidavit verifying the same, together with notice of the time and place of the application for this order, were personally served at least fourteen days before the presentation of said petition, it is Ordered, That R. Y., now in possession of the premises, produce the said life tenant, C. D., before J. L., a referee, who is hereby appointed for that purpose, at his office, in the of , N. Y., on the day of , 190. ., at o'clock in the noon, or in default thereof, prove that said life tenant is living. No. 128. Referee's Report. Ante, § 135. [Title of proceeding.'^ To the Supreme Court of the State of New York: I, J. L., the referee appointed in the above-entitled proceeding for the discovery of C. D., a life tenant, do hereby respectfully report: That before proceeding with said reference, I took and subscribed the oath prescribed by section 1016 of the Code of Civil Procedure, and that the same is hereto annexed; that I attended at my office at the time and place named in the order of reference herein, and that E. F. appeared on behalf of the petitioner and C. L. on behalf of R. Y. ;* that there was produced before me by said R. Y., a person named C. D., who, by the terms of said order of reference, the said R. Y. was required to produce. I took the depositions of the said C. D. and R. Y., re- specting the identity of the said C. D. with the person whose death is in question, and have annexed the same to this report, and that before the hearing before me closed the said petitioner's counsel admitted the identity of the said C. D. My conclusion is that the said C. D. and the person whose death is in question are one and the same person, and that the order requiring the production of the life tenant before me has been fully complied with. Dated, J. L., Referee. FORMS. 401 No. 129. Referee's Report Showing Death of Life Tenant. Ante, § 135. iAs in last form to *, then proceed as follows:] The said R. Y. did not produce the said C. D. before me, as in said order of reference directed, and I thereupon proceeded to take the depositions of the following-named persons, to-wit: [Here state names of witnesses sivorn], all of which said depositions are annexed to this report, and my conclusion and finding is that the said E. F. died at on the day of 190. ., and that the petitioner herein is entitled to be let into possession of the premises described in the petition herein. Dated, J. L., Referee. No. 130. Order on Referee's Report. Ante, § 136. At a Special Term, etc. Present — Hon , Justice. ITitle.] Upon filing the report of J. L., referee in this proceeding, before whom it was, by an order of this court bearing date the day of , 190.., ordered, that R. Y. produce the life tenant above named, or, in default thereof, prove that the said life tenant is living, and upon the proofs appended to said report, it appearing to the satis- faction of the court that the said R. Y. has fully complied with said order and has produced the life tenant [or, has proven his existence], and on motion of C. L., attorney for said R. Y., it is Ordered, That the petition of A. B. verified the day of , 190.., upon which the said order of reference was granted, be and the same hereby is dismissed and the said petitioner is hereby ordered to pay to the said R. Y. the sum of dollars, the costs of these proceedings. No. 131. Order on Referee's Report Showing Death of Life Tenant. Ante, § 13s. At a Special Term, etc. Present — Hon , Justice. ITitle.] On reading and filing the referee's report in this proceeding, dated the day of , 190. ., and the proofs annexed to said re- 26 402 FORMS. port, whereby it appears that said C. D., the life tenant whose death is in question in this proceeding, died on the day of , 190. ., at , it is now, on motion of E. F., attorney for the petitioner herein, Ordered, That the said petitioner, A. B., be let into possession of the premises described in the petition, and the said R. Y. is hereby ordered to so let the said A. B. into possession thereof. D. C. H., Justice of the Supreme Court. No. 133. Affidavit for Order in Supplementary Proceedings for Collection of Taxes.* Ante, §§ 137, 138. COURT — County of , as Treasurer of the County of [or, Su- pervisor of the Town of , or, President of the Village of ], N. Y. against J. D, (- STATE OF NEW YORK, County of , being duly sworn, deposes and says, that he is treasurer of the county of , N. Y. [or as the case may be]. That J. D. was assessed upon the assessment-roll of the town [or, village] of , in said county, for the year 190.., in the sum of $ ; that the amount of tax thereon, as appears by the tax list delivered to the col- lector of the said town [or, village], was in excess of ten dollars, to-witr the sum- of $ ; that said tax has been returned uncollected by the collector of said town [or, village] for want of goods and chattels out of which to make the same, and that said tax remains wholly uncol- lected and unpaid ; that said J. D. is a resident of the said county of ; that one year has not elapsed since the return of said tax, and that no former application for an order requiring the said J. D. to appear for examination has been granted. Sworn to before me, this ) day of , 190. . ( *[NoTE. — The order requiring the tax debtor to appear for examination may be prepared from orders in supplementary proceedings. See Nos. 105 to 108, ante.) FORMS. 403 No. 133. Order of Reference. Ante, § 139. At a Special Term, etc. Present — Hon , Justice. [Title.] Upon reading and filing the petition of , an infant above the age of fourteen years, and of , his guardian [or, relative], by which it is made to appear as follows : [Here insert the substance of the petition, ■which should be made to comply with the requirements of Rule 55, and sections 2348, 2349, 2359 of the Code] ; and an order having made and entered in this action on the day of , 190. ., appointing special guard- ian of the said infant, upon his own consent, and the said hav- ing given the bond required by law and by said order, which has been duly approved and filed, it is now, on motion of , attorney for said petitioner. Ordered, That the said be and he is hereby appointed spe- cial guardian of the said infant. . with respect to the proceedings, and that said guardian file said bond with the clerk of the county of Also Ordered, That it be referred to , Esq., of , N. Y., as sole referee, to examine into the truth of the allegations of the petition ; to hear the allegations and proofs of all persons interested in the appli- cation, and to report his opinion thereon, together with the testimony taken, with all convenient speed. [Signature of the judge.] No. 134. Referee's Report. Ante, § 141. [Title.] To the Court : Pursuant to an order of this court, in this proceeding, duly entered on the day of , 190. ., by which it was referred to me to inquire [here follow the language of the order appointing referee], I, , the referee aforesaid, do hereby respectfully report that before proceeding with said reference I took and subscribed the usual oath of office, which is hereto annexed. That I was attended upon said hearing by [here state all appearances]. That I proceeded to examine into the truth of the allegations of the petition, and after due notice to all persons interested in the property, or otherwise interested in the application, I heard the proofs of the peti- 404 FORMS. tioner, and [all other persons who desired to be heard] who were the only persons appearing before me. That the facts so proven before me are as follows: [Here state facts fully without referring to the petition or any other paper]. And I am of the opinion that the said premises of the said infant , should be sold at private sale, for cash, for not less than dollars. The testimony taken by me upon said examination are herewith re- turned. All of which is respectfully submitted, Dated, , Referee. No. 135. Order to Show Cause in Proceedings for Voluntary Dissolution of Corporation. Ante, § 143. At a Special Term, etc. [Title of proceeding.] On reading and filing the petition of , and , as trustees of the and the schedule thereto annexed, duly verified by the petitioners on the day of , 190. ., and on motion of , attorney for petitioners, it is Ordered, That all persons interested in said corporation show cause before this court at a Special Term thereof, to be held at , in the of , N. Y., on the day of , 190.., at the opening of court on that day or as soon thereafter as counsel can be heard, why the said corporation should not be dissolved, and why such petitioners should not have such other and further relief as to the court may seem fit and proper. It is Further Ordered, That a copy of this order be published as prescribed herein, at least once in each of the three weeks immediately preceding the time fixed herein for showing cause, in the and in the , two newspapers published in the county of No. 136. Order of Reference in Proceedings for Voluntary Dissolution of Corporation. Ante, § 143. At a Special Term, etc. [Title of proceeding.] The petitioner having, upon his duly verified petition and schedules, procured an order directing all parties interested in the to FORMS. 405 show cause at Special Term of this court, on the day of , 190. ., why said corporation should not be dissolved, and said motion having been brought to a hearing : Now, on reading said order to show cause and the petition and schedules on which the same was granted, all of which were duly filed herein within ten days from the time of the presenting of said order; and on reading the admission of the service of the notice of this motion upon him by the attorney-general, and the affidavit of , show- ing the due service by mail of a copy of said order to show cause, upon all persons named in said schedule as creditors or stockholders, at the places stated therein as their respective residences (and other proofs, if any), and on due proof of publication of said order in the and at least once in each of the three weeks immediately preceding the return day of said order to show cause, all of which have been duly filed herein, and after hearing in behalf of the petitioner in support thereof and on reading and filing the answer of , and after hearing , of counsel for said , opposed Ordered, That , counselor- at-law, residing at , N. Y., be and he hereby is appointed referee herein to hear the allega- tions and proofs of the parties and determine the facts and report the same in writing to this court, with all convenient speed. No. 137. Referee's Report. Ante, § 143. [Title of proceeding.! I, the undersigned, the referee, to whom it was referred by an order of this court, made at Special Term thereof, held at the , in the of , N. y., on the day of , 190. ., requiring all persons to show cause before me [state time and phcel, why the should not be dissolved, do hereby report : That due proof having been made by affidavit hereto annexed, of the publication of said order as thereby required, I proceeded, at the time and place last aforesaid, to a hearing of the matters so referred, being attended by :, attorney for the petitioners, and also , attorney for , a stockholder. That I thereupon heard the proofs and allegations of the said parties, and took the testimony in relation to the matters set forth in said petition, and also in regard to such other matters and things pertaining to the affairs of said corporation as were brought before me, which testimony, duly subscribed by the respective witnesses, and certified by me, is hereto annexed. 406 FORMS. I further report that schedule "A," annexed to said petition, is just and true, with the exception of [state matters excepted, if anyl, which I find belongs to said corporation and are contained in schedule " F," hereto annexed, and also excepting several debts or claims against said corporation, proved by me, and not entered on said schedule, but are contained in the additional schedule hereto annexed, marked " G," which shows the name of each of said creditors, the sum due him, his place of residence, the nature of the claim, and the true cause or considera- tion of the indebtedness, and I find and decide the facts relating to said corporation accordingly. And I further report, that the following is a statement of the eflfects, credits, and other property and of the debts and engagements of said corporation, and of all other matters pertaining to its afTairs, viz.: [Here state them.] I return herewith the original petition and schedules annexed thereto, which have been transmitted to me for use upon such hearing, by the clerk of county, upon my written order, and are annexed to this report and made a part thereof. All of which is respectfully submitted. Dated, Referee. No. 138. Order of Reference in Proceeding to Compel an Attorney to Pay Over Money. Ante, § 146. At a Special Term, etc. [Title of proceeding.'] Upon reading and filing the affidavits of , and verified respectively the day of 190. . , the order to show cause herein made at Special Term of this court, held on the day of , 190.., and after hearing , attorney for petitioner, and , attorney for respondent, it is Ordered, That be, and he hereby is, appointed referee herein, to hear and determine the amount and the value of the services of and his lien upon the sum of dollars now in his possession, and which said sum was paid to him on the day of , 190.., for and on account of a claim in favor of said petitioner. That the hearing on the issues to be determined by said referee shall take place before said referee at his office in the of N. Y., on the day of , 190. . , and at such other times FORMS. 407 and places as said referee may adjourn the same. That said referee shall report the evidence produced before him and his decision thereon, to this court, and that within twenty-four hours after a copy of the decision of the court has been served upon the said respondent, he, the said , shall pay to the referee herein, whatever amount shall be found due from said over and above his said alleged lien. No. 139. Order Directing Payment of Money by Attorney. Ante, § 146. At a Special Term, etc. ITitle of proceeding.^ On reading and filing the report of the referee herein, with notice of motion for confirmation thereof, and after hearing , in behalf of said motion, and , opposed, and it appearing to the satis- faction of this court that . ■. , as attorney, has in his possession dollars [with interest], belonging to , the peti- tioner herein, it is Ordered, That said report of the referee, , be, and the same hereby is, in all things confirmed and approved ; And it is Further Ordered, That said pay said sum of dollars, so in his possession, to , for and on behalf of said petitioner, within twenty-four hours after the service of a copy of this order upon him, the said , exclusive of Sunday; And it is Further Ordered, That the costs and disbursements in- curred by the said petitioner in these proceedings be fixed at $ , and that the same shall be paid to the said within the same time as the aforesaid sum of dollars ; And it is Further Ordered, That in case the said fails to pay said amount of money within the time above prescribed he be deemed in contempt of court. No. 140. Order of Reference in Controversy by Receiver of Corporation. Ante, § 147. [See Forms Nos. 118 to 124, ante, under References of Controversies, under Insolvent Debtors Law.] 408 FORMS. No. 141. Submission to Arbitration. Ante, § 153. In the Matter of the Arbitration between A. B. and C. D. Whereas, Differences do now exist, and for a long time have existed, between A. B, and C. D., both of the of , N. Y., in relation to divers subjects of controversy and dispute, and which might respectively be the subjects of an action; Novf, Therefore, The undersigned, the said A. B. and the said C. D., do hereby mutually covenant and agree to and with each other to submit all and all manner of actions, cause, and causes of action, suits, contro- versies, claims and demands whatsoever now pending, existing, or held by and between said parties, to J. D., B. R., and C. M., of N. Y., as arbitrators [or, to T. L., of , N. Y., as sole arbitrator], who [or, any two of them] shall arbitrate, award, order, adjudge, and deter- mine of and concerning the same. The said arbitrators may select or appoint an additional arbitrator, or umpire, by appointment in writing. And we do mutually covenant and agree to and with each other, that the said award to be made by said arbitrators, or any two of them, shall in all things, by each of us, be well and faithfully kept and observed ; provided, however, that the said award shall be made in writing under the hands of said arbitrators, or any two of them, and duly acknowledged, or proved and certified, as required by law, and filed in the county clerk's office of the county of , or delivered to the said parties in difference, or either of them, or his attorney, on or before the day of , igo. . And we further agree, that a judgment of a court of record, to- wit: the Supreme Court in the county of , shall be rendered upon the award made, pursuant to this submission, as provided by section 2366 of the Code of Civil Procedure. Witness our hands and seals, this day of , 190. . To be witnessed and ) A. B. [l. s.] acknowledged. f C. D. [l. s.] No. 143. Appointment of Time and Place of Hearing. Ante, § 158. In the Matter of the Arbitration [ between A. B. and C. D. [ To A. B. and C. D.: You are hereby notified that the undersigned, arbitrators appointed pursuant to an agreement between you, dated the day of , FORMS. 409 190. .,- do hereby appoint the day of , 190. ., at o'clock in the , as the time, and the office of , in the of , N. Y., as the place for the hearing of the matters submitted to them, and that they will attend at such time and place for the purpose of such hearing. Dated, Yours, etc., J. D., B. R., C. M., Arbitrators. No. 143. Notice of Hearing. Ante, § 126. In the Matter, etc. Sm. — Take notice, that the above matter will be brought to a hearing before the arbitrators appointed therein, at the office of , in the of , N. Y., on the day of , 190.., at o'clock in the noon, pursuant to an order made by them, fixing such time and place. Dated, Yours, etc.. To C. D. A. B. No. 144. Oath of Arbitrator. Ante, § 159. [Title and venue.l I, the undersigned, arbitrator herein, do solemnly swear that I wilt faithfully and fairly hear and examine the matters in controversy sub- mitted to me, as such arbitrator, by and between A. B. on the one part, and C. D. of the other part, and a just award thereon make, according to the best of my understanding. Sworn to, etc. No. 145. Subpoena for Arbitration. Ante, § 159. The People of the State of New York, to D. R., Greeting: We command you and each of you, that all and singular business and excuses being laid aside, you and each of you appear and attend before T. L., the arbitrator to whom certain differences between A. B. and 410 FORMS. C. D. has been submitted, at the office of , in the of , N. Y., on the day of , 190.., at o'clock in the noon, then and there to testify and give evidence before said arbitrator in relation to said matters in difference between the said A. B. and C. D., on the part of the said C. D., and for a failure to attend you will be deemed guilty of a contempt and liable to pay all loss and damages sustained thereby and forfeit fifty dollars in addition. Witness my hand, at , N. Y., the day of , 190.. T. L., Arbitrator. No. 146. ! Award. Ante, § 161. * ITitle.] To all to Whom these Presents Shall Come or May Concern: We, J. D., B. R., and C. M., to whom was submitted, as arbitrators, the matters in controversy, existing between A. B. and C. D., as by the condition of the submission executed by the parties respectively, and dated the day of , 190. ., more fully appears ; Now, Therefore, know ye, that we, the arbitrators mentioned in said submission, having heard the proofs and allegations of the respective parties, and examined the matters in controversy, by them submitted therein, do, therefore, make this award in writing, that is to say: [Here insert the decision and findings in detail.1 In Witness Whereof, We have hereunto subscribed these presents this day of , 190.. J. D., B. R., C. M., Arbitrators. [Add acknowledgment, and if signed in a county other than that named in submission for filing award, attach clerk's certificate.! No. 147. Notice of Motion to Confirm Award. Ante, § 163. [Title.] To C. D. and to D. K., his Attorney: Take notice, that an application will be made to the Supreme Court, at a Special Term thereof, to be held at the courthouse, in the city FORMS. 411 of N. Y., on the day of , 190. ., for an order confirming the award of the arbitrators herein, in the above-entitled matter, which award is dated the day of , 190. ., and for judgment thereupon in accordance therewith, with costs, and for such other or further relief as may be proper. That said application will be made upon said award and upon all other papers and proceedings herein. Dated, Yours, etc., W. O., A. B. Attorney for A. B. No. 148. Order Confirming Award. Ante, § 163. At a Special Term, etc. Present — Hon , Justice. ITitle.] On reading and filing the award made by the arbitrators, J. D., B. R., and C. M., in the above-entitled matter, dated the day of , igo. ., by which it appears that [here state substance of award] with proof of due service upon C. D. of notice of application for this order, together with a copy of the said award, and upon motion of W. O., counsel for said A. B., and after hearing D. K., counsel for C. D., in opposition, it is hereby Ordered, That the said award be, and the same is hereby, in all things confirmed, and that the said A. B. have judgment against the said C. D. for the relief therein specified, and for the fees and expenses of the said arbitrators, as therein mentioned, and $25 costs of this application and of proceedings subsequent thereto, and his disbursements therefor to be taxed. E. A, S., Justice of Supreme Court. No. 149. Judgment on Award of Arbitrators. Ante, § 167. SUPREME COURT— County. B- against — D— Judgment , lyo. ., at . . . . ■ o'clock, . . M. A dispute having arisen between the parties above named in regard to divers matters pending between them, and said dispute and differences 412 FORMS. having been submitted to certain arbitrators agreed upon between the parties, and said arbitrators having duly made an avi^ard dated the day of , 190.., wherein they awarded and decided that the said A. B. was entitled to recover against the said C. D. the sum of dollars, and said award having been duly confirmed by an order of this court dated the day of , 190.., and it appearing that said A. B. is entitled to judgment against the said C. D. for the sum of dollars, with interest thereon from the day of , 190. ., amounting to dollars, together with costs and disbursements, taxed at dollars : Now, on motion of W. O., attorney for A. B., it is Adjudged, That the said A. B. recover of said C. D. the sum of dollars damages, and dollars costs, amounting in all to dollars, and that he have execution therefor. J. F., Clerk. No. ISO. Notice of Motion to Vacate Award. Ante, § 164. [Title. 1 Sir. — You will please take notice that an application will be made to the Supreme Court, at a Special Term thereof, to be held at the Chambers of Justice , in the city of , N. Y., on the day of , 190. ., for an order* vacating the award made by the arbi- trators herein, dated the day of , 190. ., upon the follow- ing grounds : [Here state them fully'] with costs, and for such other or further relief as may be proper. Such application will be made upon the said award and upon the affi- davits and papers, copies of which are herewith served. Dated, Yours, etc., Attorney for C. D. To , Attorney for A. B. No. 151. Notice of Motion to Modify or Correct Award. Ante, § 165. As in last above to *, modifying [or, correcting] the award made by the arbitrators herein dated the day of , 190.., in the following particulars: [Stating them in full], with costs, and for such other or further relief as may be proper. [Add last sentence, date, and signatures as in last above.] FORMS. 413 No. 153. Order Staying Proceedings Pending Motion {to he Indorsed on Moving Papers) . Ante, § 166. To A. B,: On the within papers and notice of motions, ordered that all proceed- ings on the part of A. B., to enforce the award in the within proceeding, ■fae, and hereby are, stayed until the hearing and determination of the within-noticed motion. Dated D. C. H., Justice Supreme Court. No. 153- Order Vacating Award. Ante, § 164. At a Special Term, etc. Present — Hon , Justice. ITitle.'] On reading and filing notice of motion, that the award made herein by the arbitrators heretofore selected, bearing date the day of , 190. ., be vacated, and after hearing , of counsel for C. D., for the motion, and , of counsel for A. B., who reads [here name papers^ in opposition, it is here Ordered, That the said award be, and the same hereby is, wholly va- cated and set aside, with $ costs and disbursements to be taxed to be paid to the said C. D. by the said A. B. J. M. K., Justice Supreme Court. No. 154. Referee's AtKdavit as to Time Spent on Reference. Ante. §§ 32, 173. ITitle of cause.l COUNTY OF ss.: , being duly sworn, says: That he was the referee in the above-entitled action; that as such referee he was actually and necessarily ■engaged upon the business of said reference days, viz. : days in hearing the evidence ; days in hearing arguments of counsel]; days in the consideration of the case after submission; days in the preparation of the report [and opinionl ; and 414 FORMS. days attendance where adjournments were had at the request of the par- ties attending before me; that a large amount of testimony was taken, much of it of an expert character, and the questions of fact and of law decided were complicated and difficult. In addition to stenographer's minutes I kept minutes of said trial and noted therein each day's service, and no more time was spent thereon than was necessary. Sworn to before me, this . day of , 190. . f INDEX TO FORMS. [The references are to pages.] Affidavit: by party on motion for compulsory reference 331 by attorney on motion for compulsory reference 332 to oppose motion 332 when action is on special agreement 333 by denying account 333 where action not founded on contract 334 where fraud is alleged 334 where account is not directly involved 334 when speedy trial can be had at Trial Term 335 of service of subpoena 338 of death of referee 341 to procure order to show cause in contempt proceedings 350 for reference to compute amount due 360 as to surplus 367 for order for judgment debtor to appear and answer 381 to examine judgment debtor on justice's judgment 384 for commission under Insolvent Debtors Law 396 for order in proceedings for collection of taxes 402 by referee of time spent on reference 413 Agreement: to refer controversy under Insolvent Debtors Law 394 Alimony: order of reference on motion for 372 order confirming referee's report 372 referee's report allowing 371 referee's report against 372 Amendments: to proposed case and exceptions 347 Appeal: notice of, from j udgment 348 from order of reference 335 Appointment: by referee of time and place of hearing 336 by arbitrator of time and place of hearing 408 [415] 4l6 INDEX TO FORMS. [The references are to pages.] Arbitration: submission to 408 appointment of time and place of hearing 408 notice of hearing 409 oath of arbitrator 409 subpcena 409 award in 410 notice of motion to confirm 410 order confirming 411 j udgment on 41 1 notice of motion to vacate 412 notice of motion to modify 412 order staying proceedings pending motion 413 order vacating 413 Assignment Act: petition for examination under section 21 of 389 order for examination of assignor, etc 390 order of reference on assignee's accounting 390 referee's report on assignee's accounting 391 Attachment: order for examination of third party under 387 referee's oath in proceedings for 388 referee's report upon examination of third party 388 referee's subpoena 389 Attorney: order of reference in proceedings against 406 order directing payment of money by 407 Award: in arbitration 410 notice of motion to confirm 410 order confirming 411 judgment on 411 notice of motion to vacate 412 notice of motion to modify 412 order vacating 413 Case and exceptions: proposed 345 settlement of 348 Certificate: of referee on examination of party or expected party 358 on motion for extra allowance 343 INDEX TO FORMS. 41/ [The references are to pages.] Claims against estates of decedents: notice of rejection and offer to refer 373 consent to refer 373 order of reference 374 oath of referee 374 report of referee 375 judgment on referee's report 375 Commission: affidavit for, under Insolvent Debtors Law 396 application for, notice of 396 commission to take testimony issued by referee 397 interrogatories and cross-interrogatories 398 Consent: to refer claim against estate 373 Contempt: affidavit to procure order to show cause in proceedings for 35c order by referee adjudging witness guilty of 348 warrant of commitment on referee's order 349 order to show cause, by referee 350 warrant of attachment in 351 order of commitment by court 352 warrant of commitment on order of court 353 Corporation: order to show cause in proceedings for dissolution of 404 order of reference in proceedings for dissolution of 404 referee's report in proceedings, etc 405 order of reference in controversies by receiver of 407 Divorce: stipulation to refer action for 369 referee's report in action for 369 notice of motion to confirm 370 Exceptions: to referee's report '343 case and 345 Foreclosure: affidavit for reference to compute 361 order of reference ; whole amount due 361 referee's report ; whole amount due 361 whole amount not due 363 notice of motion to confirm report, etc 363 notice of sale 364 27 4l8 INDEX TO FORMS. I [The references are to pages.] Foreclosure — Continued : terms of sale 365 referee's report of sale 365 order confirming referee's report of sale 366 Hearing: appointment of time and place of, by arbitrator 408 by referee 336 notice of, before arbitrator 409 before referee 336 Insolvent Debtors Law: agreement to refer controversy under 394 order of reference under 395 referee's report under 395 affidavit for commission under 396 application for commission, notice of 396 commission by referee to take testimony under 397 interrogatories and cross-interrogatories 398 Interrogatories: under commission to take testimony, issued by referee under In- solvent Debtors Law 398 Judgment: on award in arbitration 411 in foreclosure, notice of motion for 363 on referee's report, claims against estate 378 on referee's report on trial of issues 344 notice of, entry of 345 notice of appeal from 348 Life tenant, discovery of: petition in proceedings for 398 notice of presentation of petition 399 order of reference 400 referee's report 400 referee's report showing death of 401 order on referee's report 401 order on referee's report showing death •• ■ ■ •- 401 Matrimonial actions. See Alimony; Divorce. Notice: of appeal from judgment ;...... 348 of appeal from order of reference 335 INDEX TO FORMS. 419 [The references are to pages.] Notice — Continued : of application before referee for commissions 396 of claim to surplus 367 indorsed on proposed case 347 of entry of judgment 345 of hearing before arbitrators 409 of hearing before referee 336 of motion for reference 332 of motion for appointment of new referee 342 of motion for reference as to surplus 367 of motion for confirmation of referee's report in action for divorce 370 of motion for confirmation of referee's report as to surplus 368 of motion for confirmation of award of arbitrator 410 of "motion to modify award of arbitrator 410 of motion to vacate award of arbitrator 410 of presentation of petition in proceedings for discovery of life tenant 399 of rejection of claim against estate 373 of sale of real estate 364 terminating reference 342 Oath: of arbitrator 409 of referee in attachment proceedings 388 of referee in claims against estates 374 of referee in supplementary proceedings 386 of referee on trial of issues 334 of witness 34i waiver of, of referee 337 Order: adjudging witness guilty of contempt 348 appointing new referee in place of appointee declining to serve. . 330 appointing new referee in place of one deceased 342 appointing referee to examine party before trial 357 of commitment by court in contempt proceedings 351 confirming award of arbitrator 411 confirming referee's report as to alimony 372 confirming referee's report of sale 366 for debtor to appear before referee in supplementary proceedings. 383 for examination of assignor or third party 390 for examination of third party in attachment 387 for examination of expected party 359 for examination of debtor on justice's judgment 385 for examination of third person in supplementary proceedings. .. . 382 420 INDEX TO FORMS. [The references are to pages.] Order — Continued : of reference as to alimony 371 as to surplus 368 on assignor's accounting 390 by consent 329 by court, without motion 331 of claim against estate 374 to examine account in Surrogate's Court 377 of issues, on motion 335 in proceedings for sale of infant's real estate 403 to ascertain damages by injunction 359 under Insolvent Debtors Law 395 in proceedings for discovery of life tenant 400 in proceedings for dissolution of corporation 404 in probate cases 397 in proceedings against attorney 406 of specific questions of fact 356 of specific question of fact in Surrogate's Court 376 to take proof on default 359 to take an account 354 whole amount due in foreclosure 361 to show cause in proceedings for dissolution of corporation 404 directing payment of money by attorney 407 on referee's report on discovery of life tenant 401 on referee's report showing death of life tenant 401 setting aside report and removing referee 330 to show cause in contempt proceedings 351 staying proceedings pending motion to vacate award 413 vacating award of arbitrator 413 Petition: for examination under section 21, Assignment Law 389 Report: of referee on application for alimony 371 against allowance of alimony 372 attached to deposition 356 on assignee's accounting 391 on examination of third party in attachment proceedings 388 on reference of claim against estate 375 in action for divorce 369 on dismissal of complaint for failure to state cause of action. 339 on dismissal of complaint for plaintiff's default 339 on trial of demurrer 344 determining damages by reason of injunction 360 INDEX TO FORMS. 421 [The references are to pages.] Report — Continued : of referee on discovery of life tenant 400 showing death of life tenant 401 generally 343 on sale of real estate of infant 403 on reference of controversy under Insolvent Debtors Law. . 395 on examination of account in Surrogate's Court 377 of facts with evidence in Surrogate's Court 378 on motion for judgment on pleadings 340 in proceedings for dissolution of corporation 405 on reference to take receiver's account 355 on reference to take and state an account 355 on reference to report on specific questions of fact 356 on sale of real estate 365 whole amount due 363 whole amount not due 361 Settlement of case: order of referee 348 Stipulation: for reference 329 to avoid reference 333 as to fees of referee 377 to refer claims against estate 373 Submission: to arbitration 408 Subpoena: for arbitration 409 in attachment proceedings 389 for reference 337 duces tecum 338 ticket 338 in supplementary proceedings 387 Summons: by referee. 353 Supplementary proceedings: affidavit for order for judgment debtor to appear and answer. .. . 381 for order to examine judgment debtor on justice's judgment. . 384 order for debtor to appear before referee 383 order for debtor to appear before referee on justice's judgment.. 385 order for examination of third person 382 referee's oath in 386 subpoena in 387 422 INDEX TO FORMS. [The references are to pages.] Surplus: affidavit as to surplus moneys 367 notice of claim to surplus 367 notice of motion for reference as to 367 notice of motion for confirmation of referee's report as to 368 order of reference as to 368 Surrogate's Court: consent to reference in probate cases 379 order of reference in probate cases 379 order of reference to examine account 377 order of reference on specific questions of fact 376 referee's report on examination of account 377 referee's report on facts with evidence 378 referee's report in probate cases 380 Taxes, collection of: affidavit for order in supplementary proceedings for 402 Terms of sale: on sale of real estate 364 Undertaking: where action or counterclaim is founded on lost negotiable in- strument 340 Underwriting: on referee's summons 354 Waiver: of oath of referee 337 Warrant: of attachment in contempt proceedings 351 of commitment in contempt proceedings 349, 353 Witness: oath of 341 GENERAL INDEX. [The references are to pages.] Abstract of title: by whom made 195 contents of 195 Acceptance: by widow of assignment of dower bars action therefor 207 Account: action for, when referable 5 of attorney, referability of 32 long, what is 27, 32 must be directly involved 34 interlocutory reference to take, not proper until rights of parties determined 146 may be surcharged by opposing parties on 148 practice upon, before referee ■ 147 referee's report to state all items in 149 separate reports may be made on 149 what necessary to be shown upon 147 Account stated: not referable as long account 25 Accounting: duty of referee on taking an 148 interest may be allowed on 147, n. under Assignment Law 250, 251 Aclcnowiedgment: of award in arbitration, necessity for 301 of report of referee to admeasure dower 205 Action: for annulment of marriage, referable only by consent 221 for damages, reference in 276 for divorce, referable only by consent 210 for dower, barred by acceptance by widow of assignment of 207 for separation, referable only by consent 218 how affected by arbitration 290 judgment creditor's action, reference in 276 referability of, how determined 27 when reference of, may be ordered 23 [423] 424 GENERAL INDEX. [The references are to pages.] Additional allowance: application for, must be made before judgment g^ cannot be granted by referee 6i, 93 certificate of referee necessary 93 Adjournment: of hearing, court will not grant 51 may be on terms 51 power of referee to grant 51 within discretion of referee 52 Admeasurement of dower: acceptance of assignment of, by widow bars action for 207 distinct parcels may be set off 204 fees of referee in actions for, must be taxed 205 improvements must be considered in making 203 interlocutory judgment in, form of 201 mode Of procedure in action for 202 oath of referee in action for 202 referee cannot impose easements on parcels set off 204 referee's report in action for, form of 205 exceptions to, may be filed 205 must be acknowledged, proved, and certified 205 reference of issues in action for 201 surveyor may be employed in action for 203 Administrators: when party, reference not proper 24 Advertising: for liens in partition, by referee ig6 requisites of notice 197 Affidavit: on motion for reference, by whom made 39 contents 39 must state facts 39 referee cannot receive in proof of facts 63 Agent: may bind principal in arbitration 288 Agreement: to refer claim against an estate should state issues 226 Alimony: references as to 217 after decree of divorce 218 granting or refusing, discretionary 217 form of order of reference 219 GENERAL INDEX. 425 [The references are to pages.] Allowance: additional, cannot be granted by referee 61, 93 certificate of referee necessary 93 of amendment to conform to proof 6& Amendments: complete case by way of, improper 109 referee may allow 67 to case, when to be made 108 to conform to proof may be allowed, when 68, when allowed, should be written out 68 when proposed, duty of party receiving 109 Annulment: of marriage, reference in action for 221 Appearance: and proceeding with hearing, waiver of notice 47, 59 Appeal: from judgment, how taken 115 from order of reference, may be taken 43 from order confirming report in interlocutory reference, when may be taken 143 from order vacating, etc., award, when authorized 312 must be taken within thirty days after notice of entry of order. ... 44 only mode of reviewing order 44 when may be taken from judgment on award in arbitration 311 proceedings on 311 Appellate court: may affirm, modify, or reverse judgment 116 may appoint referee to receive further evidence 277 Appellate division: may appoint referee, when 277 may appoint referee under Transportation Corporations Law.... 280 Application: for compulsory reference, how made 37 cannot be made until issue joined 39 how opposed 40 what must be shown on 39 stipulation to admit items of account may defeat 41 must be in form prescribed by court 41 Appointment: of time and place of hearing 46 copy of, should be served with notice of trial 48 may be made by majority of referees if more than one 46 of appraiser, reference for 275 426 GENERAL INDEX. [The references are to pages.] Appointment — Continued : of committee of lunatic, etc., reference for 276 of receiver, reference for 276 of trustee, reference for 276 Appraiser: appointment of, reference for 275 Approval : by surrogate of agreement to refer 223 of undertaking, reference for 273 Arbitration : agent may submit to, for principal 288 all copartners must unite in 288 attorney may submit to, for client, when 289 award in, authentication of 299 good in part and bad in part, wholly void 307 how and when revoked 313 j udgment upon, when authorized 310 liability of party revoking 314 may be opened for good cause shown 306 must be confined to matters submitted 306 should be definite and certain 306 death of party to, effect of 314 definition of 281 effect of award in 301 effect of, on pending action 289 favored by law 283 reasonable notice of hearing must be given 298 revocation of award in, when allowed 313 time of hearing in, notice of 295 unpire or additional umpire in 289 what may be submitted to 283, 284 Arbitrators: additional, or umpire, when authorized 291 appointment of, must be in writing 291 appointed in New York colony, under Dutch 2 definition of 281 distinguished from referees 8 fees of 323 may require attendance of witnesses 297 must not proceed without notice of hearing 295 power and duties of 295 Arrest: warrant of, in proceedings for contempt 123 GENERAL INDEX. 42/ [The references are to pages.] Assignment: of dower, acceptance of, by widow, bars action 207 Assignment Law: assignor may be examined before referee under 248 referee's fees on reference under 251 how fixed and paid 252 references under, generally 247 for examination of witnesses, books, etc 247 granting order of, discretionary 248 referee cannot compel production of books and papers 249 reference to take and state account of assignee 250 order of, what to provide 251 practice in New York county 250 what referee's report should show 251 who may become parties to 250 references to try and determine disputed claims 249 proceedings on 249 what order should provide 249 what costs may be allowed on 250 when order may be granted 249 Assumpsit: action of, a necessity 4 Attachment: attendance of witness may be compelled by 120 reference for examination of garnishee in 243 all pertinent questions must be answered in 246 referee may issue subpoenas for 246 order of, how and when granted 244 the examination under 245 testimony of witnesses should be signed 246 when order may be granted 345 who may be examined under 244 warrant of, may issue in contempt proceedings 122 Attendance of witnesses: may be compelled by attachment 120 may be procured by subpcena 52 prisoner in custody, writ of habeas corpus necessary 54 Attorney: for either party in other matters cannot be referee 42 power of, vacated by death of party 76 proceedings against, to compel payment of money, how instituted. 273 when reference may be ordered in proceedings against 273 Attorneys: accounts of, may be referred, when complicated 32 reference of, discretionary 32 428 GENERAL INDEX. [The references are to pages.] Award of arbitrators: claimed as defense must be pleaded 302 costs allowed on vacating 309 court may modify or correct, when 307 definition of 282 effect of 301 good in part and bad in part, wholly void 307 how authenticated 299 judgment on, where to be entered 284 may be opened for good cause shown 306 motion to confirm, when to be made 303 where to be made 303 notice of, how to be served 303 motion to vacate, modify, or correct 303 motion to vacate to be based on affidavits 308 must be confined to matters submitted 306 must be in writing 299 should be definite and certain 306 to be liberally construed 286 Bar: to action, acceptance of assignment of dower by widow 207 Bill: of attorney for services in single action, not long account 33 Bill of exceptions: if not conforming to rule, may be set back 106 what to contain 106 Books and papers: referee cannot compel production of, under Assignment Law.... 249 Case: how submitted to referee 72 when deemed submitted 80 Case and exceptions: copy to be served on opposite party 104 effect of omission to make 105 exhibits not to be set forth at length 106 form and contents of 106 making and serving of 103 may be served nunc pro tunc 105 must be settled and signed 103 resettlement of, when may be ordered Ill settlement of, by referee, a ministerial duty 91 what to contain 104, 105 when necessary to be made 103 GENERAL INDEX. 429 [The references are to pages.] Case on appeal: amendments to, when to be made 108 copy of, to be served on opposite party 104 effect of omission to make 105 exhibits need not be printed at length unless ordered 106 form and contents of 106 lines of, to be numbered in margin 108 manner of settlement of iii may be served nunc pro tunc 105 must be certified by referee on settlement in must conform to rule 106 notice of settlement of 108 effect of omission of icg not to contain evidence in haec verba 106 opinion not part of 108 settlement of, by referee a ministerial duty 97 to be attached to judgment-roll 115 to be settled and signed by referee 103, 114 what to contain 104, 105 when resettlement may be ordered 115 when motion for resettlement to be made in New York City Court. 115 Certificate: of referee as to increased costs 93 of referee on settlement of case, what to contain 113 Character: of action, determined by complaint 27 Charter of Liberties and Privileges: prohibited references 3 City Court of New York: appeals in 107 may order reference 22 motion for resettlement of case in, where to be made 165 Claims: against estates of decedents 223 agreement to refer, should state issues between the parties. . . . 226 costs may be allowed by referee 228 defense of payment must be affirmatively shown 228 judgment entered without application to court 228 judgment reviewed only on appeal 228 procedure to obtain reference of 223 referee's report to contain findings of fact and conclusions of law 228 the hearing and proceedings on reference 226 430 GENERAL INDEX. [The references are to pages.] Claims — Continued : against estates in hands of receiver of corporation, reference of 273 to surplus on sale of real estate in foreclosure, reference of 186-190 against trustee of insolvent debtor, reference of 253 Clerk: of court not to act as referee 15, 42 a partner of attorney cannot act as referee 16, 42 Collection of taxes: references in proceedings for 262 when may be ordered against nonresident 262 when ordered against resident 263 Commissions: of referee on sale in partition 199, 322 Commitment: warrant of, in proceedings for contempt 126 Committee: of lunatic, etc., reference on appointment of 276 Compensation: of arbitrator 323 of referee, how fixed 49 in dower 206, 322 in foreclosure 184, 192, 321 in partition 199, 322 Complaint: determines referability 27 dismissal of 70 equivalent to nonsuit 70 motion for, when to be made 70 Compulsory reference: actions by or against administrators or executors not subject of.. 24 application for, how made 37 cannot be made before issue joined 38 how opposed 40 moving papers for 38 necessary facts must be shown 40 not authorized when difficult questions of law involved 35 noticing cause for trial is not waiver of right to move for 38 possibility of long account not sufficient to authorize 35 question of, determined by complaint 27 what necessary to sustain order for 30 GENERAL INDEX. 431 [The references are to pages.] Compulsory reference — Continued : when proper on attorney's account 32 when not proper on physician's account 32 Condemnation proceedings: when reference may be ordered in 277 Confirmation: of award of arbitrator 303 Consent: reference of issues by 13 to refer action for annulment of marriage 221 to refer actions of divorce 211 to refer action for separation 218 to refer claim against estate of decedent 223 to refer controversy by receiver of corporation 273 to refer controversy to trustee of insolvent debtor 253 Consent to refer: must be in writing 17 when may be implied 18 Constitution: how far preventing reference 7 Contempt: offender may be punished by indictment 127, n. proceedings to punish for, how regulated 1 18-124 attachment in, when may be issued 122 interrogatories, when necessary 122 order to show cause in, when proper 122 warrant of arrest in, when to issue 123 warrant of commitment, when to issue 126 punishment for 125-129 referee may be punished for 117 power of, to punish for 117 what is 123, 124 Contract: actions founded on, only referable 28-30 reference ordered only in actions on 25, 26 Controversy: between receiver of insolvent corporation and others, reference of. 273 between trustee of insolvent debtor and others, reference of 253 Copartnership: all members must unite in arbitration 288 Corporate real estate: reference in proceedings for sale of 275 432 GENERAL INDEX. [The references are to pages.] Corporation: how service of subpoena made on 53 may be required to produce books, etc., by subpoena S3 reference of controversy by receiver of 273 appointment of referee in 274 procedure and report 274 reference in proceeding for voluntary dissolution of 269 petition for, presentation of 270 order of 270 report of referee on 271 final order in 271 Costs: additional allowance of, cannot be granted by referee 61, 93 application for, must be made to court 93, 228 referee's certificate as to, when necessary 93 allowance of, on vacating award in arbitration 309 may be awarded on reference of disputed claim 228 may be imposed as condition of adjournment S' must be taxed 99 of motion to appoint referee to ascertain damages by injunction allowed 163 of reference to try disputed claims under Assignment Law in- creases referee's fees 228, 249 on vacating award of arbitrators 309 referee's report must award costs 92 where title to real estate in question, referee's certificate neces- sary as to 73 Counsel: cannot be appointed referee 16, 42 Counsel fees: may be allowed as damages on injunction 163 Court: cannot grant adjournment of reference Si has concurrent power with referee to punish for contempt 118 has no authority to compel party to pay fees of referee 319 may correct, modify, or vacate award of arbitrator 303 may direct interlocutory reference 132, I34 may order reference for its own information 134 may order reference of issues on its own motion 22 may set aside report of, and remove referee 20 Credibility of witness: question of, solely for referee 64 GENERAL INDEX. 433 [The references are to pages.] Damages: for negligence, reference cannot be ordered in actions for 26 increased, report on 85 in dower, allowed 206 how computed 206, 207 permanent improvements not included 207 what allowable 206 when property aliened by heir of husband 207 on injunction, may be ascertained by referee 162 how established 163 what may be allowed 163 when not allowed 162 reference in actions for, may be ordered on default 276 unliquidated, reference not ordered in actions for 25 Death: of party, after offer of judgment, procedure 74 of party, before decision, renders decision void 75 of party does not abate action 73 of party vacates power of his attorney 76 of party to arbitration, effect of 315 of referee ends reference 76 of one of three referees, effect of 77 Decision: no judgment can be entered without 94 " short form," abolished 88 Default: order of reference to take proof on application for judgment on. . 161 what to direct 161 reference on, cannot be ordered in action of tort 161 may be ordered in action for damages 276 Defense: of payment of disputed claim must be affirmatively shown 228 Demurrer: not permissible, on reference of disputed claim 226 referee's report on trial of 94 findings of fact not necessary 94 must direct the judgment to be entered 95 Deposition: de bene esse, must contain all statements of person examined. .. . 160 must be carefully read and subscribed 161 what must be shown on application for order to take 157, n. where to be filed 161 for use on motion, how obtained IS3~ISS 28 434 GENERAL INDEX. [The references are to pages.] DifRcult question of law: must be pointed out to defeat reference 40 reference cannot be granted when involved 35 Disbursements : on sales of real estate, what allowed 185, 321 Discovery: reference in, judgment creditor's action for 276 Discussion of case: with one of parties, ground for setting aside report 77 what held improper 77~7!> Dismissal of complaint: equivalent to nonsuit 70 motion for, when to be made 70 Dissolution of corporation: references in proceedings for 269 petition for, presentation of 270 order of 27a report on 271 Divorce: action for, not referable except by consent 211 judgment in action for, and how reviewed 215 motion for, must be made at Special Term (except in First Judicial District) 216 referee must try all issues in action for 211 referee's report, what to contain 215 exceptions to, may be filed 216 reference in action for 211 cannot be had on default 212 court cannot order, when objection made 211 what may be shown on 212 reference to take evidence on default cannot be made 211 Dower: acceptance of assignment of, by widow bars action for 207 action for, reference of issues in 201 admeasurement of, must be made, if possible 202 damages in, allowed 206 how computed 206, 207 permanent improvements not included 207 what allowable as 206 when property aliened by heir of husband 207 distinct parcels should be set off 203 fees of referee in action for, must be fixed 205 improvements must be considered in action for 203 interlocutory judgment in action for, form of 201 GENERAL INDEX. ,, 435 [The references are to pages.] Dower — Continued : mode of procedure in action for 202 oath of referee in action for 202 other references in action for 202 recovery of damages in action for 207 referee cannot impose easement on parcels set off 204 referee's report in action for, must be acknowledged, proved, and certified 205 exceptions to, may be filed 205 reference of issues in actions for 201 surveyor may be employed in action for 203 Easement: referee cannot impose, upon property adjoining that set oflf to dowress 204. Equitable actions: are referable 22 Evidence: how received on trial 62 in action for divorce, what sufficient 214 when conflicting, duty of referee 65 Examination of party: deposition on, to be certified and filed 161 to be read and subscribed 161 how made by referee I59 may be adjourned 158 order of reference for, before trial 156 upon what based i57 what to require 158 who may grant 157 what question competent on reference for 158 Exceptions: in interlocutory references, if not filed report becomes absolute. . 141 may be filed nunc pro tunc 141 to be heard at Special Term 142 in references of issues generally 100-103 may be filed nunc pro tunc 103 when to be taken 100, 102 former rule relating to loi notice of, must be annexed to judgment- roll 100 to all findings and conclusions of no avail 102 to referee's report, how made 100 when deemed too late 102 who may file 102 436 GENERAL INDEX. [The references are to pages.] Exceptions, case and: copy to be served on opposite party 104 effect of omission to make 105 exhibits need not be set forth at length 106 form and contents of 106 making and serving of 103 may be served nunc pro tunc 105 must be settled and signed 103 resettlement of, when may be ordered ill settlement of, by referee a ministerial duty 91 what to contain 104, 105 when necessary to be made 103 Executor: when party, reference not proper 24 Extra allowance: application for, must be made before judgment 99 of costs cannot be granted by referee 61, 93 certificate of referee necessary g3 Fact, findings of: duty of referee as to, when evidence conflicting 91 must be based on evidence 91 must be separately stated 86, 89, 102 statement of conclusion of law without, insufficient 90 Fees of arbitrators: on subject of agreement 323 cannot be recovered in case of misconduct 324 lay be recovered by action 323 Fees of referees: affidavit as to time spent necessary 51, 319 agreement to give lien upon judgment for, disqualifies referee from settling case SO, n., 318 attorneys may make stipulation for 50, 318 clerk hire, stenographer's fees, etc., cannot be included in 318 court has no contract over stipulation for 318 court has no power to compel payment of 319 excessive expenses for, not approved 319 for adjournment, may be included 319 how fixed 49, 317 increased, allowed only by stipulation 49, 317 in surplus proceedings, who liable for 192, 320 may be paid from fund in court 320 on settlement of case 320 receiver cannot consent to increase of 318 GENERAL INDEX. 437 [The references are to pages.] Fees of referees — Continued: referee may compel payment as condition for delivering report, 96, 320 referee may sue for 320 schedule of 324-328 stenographer's fees, clerk hire, etc., not to be included 318 stipulation for, must be definite and certain 50, 318 to admeasure dower 206 surveyor's fees may be included 205 to sell in foreclosure 184, 320, 326 disbursements allowed 184, 321 in case of settlement before sale 185, 321 in New York and Kings county 185, n., 322, 326 to sell in partition 199, 321, 326 under Assignment Act 251 court may compel assignee to pay 252 must be taxed if obj ected to 252 under Highway Law 325 verbal stipulation for insufficient, unless memorandum made by referee 50, 318 what may be included in 50, 318, 319 Fees of surveyor: in actions for dower 205 Filing of testimony: under interlocutory references 139 Findings of fact: duty of referee as to, when evidence conflicting 91 must be based on evidence 91 must be separately stated 86, 89, 102 statement of conclusion of law without, insufficient 90 Foreclosure of mortgage: action for, referable 166 advertising sale on 176 disbursements of referee on sale, what allowed 185 issues in actions for, may be referred 165 practice under such reference 166 judgment in actions for, what to contain 173 notice of sale on, how published 177 rule in New York and Kings counties 177 referee in, cannot accept affidavit in proof 170 to be selected by court 169 reference to compute amount due on, when ordered 166 affidavit to obtain, what to show 167, 169 cannot be had until all defendants served 168 exceptions to report on, may be filed 172 hearing before referee, how brought on 170 438 GENERAL INDEX. [The references are to pages.] Foreclosure of mortgage — Continued : reference to officer of corporation to be examined as to payments. 170 referee cannot accept affidavit as proof 170 report on, must be confirmed 172 must conform to order , 172 reference to sell on 174 referee may be required to give security 174 referee to be selected by court 174 referee to execute deed 182 referee's fees on sale 184 report of sale and confirmation 183 sale, how conducted 174 must be in parcels 175 notice of adjournment of, to be published 180 referee's fees on 184, 320 surplus money, how disposed of 174 Forms. See separate index to, ante, pp. 415-422. Fraud: action for damage for, not referable 26 question of, involved, prevents reference 25 set up in answer does not change character of action 27 Garnishee: in attachment, reference for examination of 243 See Attachment. Oeneral creditor: has no lien on surplus moneys 190 dross sum: in lieu of dower, how ascertained 208 Guardian: of infant cannot convey premises to himself 268 of infant may petition for sale of real estate 265 Habitual drunkard: reference on appointment of committee of 276 See Appointment ; Committee ; Infant. Handwriting: may be examined by referee to determine its genuineness 65 Hearing: appointment of time and place of hearing, in arbitrations 298 in references 46 should be in writing 46 either party may bring reference to 47 GENERAL INDEX. 439 [The references are to pages.] Hearing — Continued : in mortgage cases, how brought on 170 insufficient notice of, may be waived 47 may be adjourned 51 may be directed in different counties 43, ^^ must be within jurisdiction of court 47 notice of, how served 47 either party may serve 47 insufficient, may be waived 47 of exceptions in interlocutory references 142 what may be shown on, in surplus proceedings 190 Highway Law: references under 278 Husband: and wife, when and where not competent witnesses in action for divorce 212 Idiot: reference on appointment of committee for 276 See Appointment; Committee; Infant. Implied consent: to reference, what may constitute 18 Impropriety of referee: grounds for setting aside report 78 must be proven 78 what constitutes 78, 79 Increased costs: application for, must be made before judgment 99 cannot be allowed by referee 61, 93 certificate of referee necessary before court will grant 93 Increased damages: how to be stated in referee's report 85 Indictment: may be had against offender in contempt 127, n. Infant: appointment of referee in proceedings for sale or mortgage of real estate of 265 proceedings before referee 266 referee's report 266 referee's report, confirmation of 267 cannot submit to arbitration 289 cannot consent to reference 14 guardian of, cannot convey real estate to himself 268 reference essential on petition for sale of real estate of 13S, 146 when party, oath of referee cannot be waived 49 440 GENERAL INDEX. [The references are to pages.] Information of court: reference may be ordered for 134 Injunction: reference to ascertain damages by 162 cannot be had until final decision 163 motion for, when to be made 162 proceedings under 163 report of referee to be confirmed 164 what may be allowed by referee 163 Inquiry: referee may be appointed to make an 275 Insolvent Debtors Law: court may order compulsory reference under 254 powers and duties of referee under 255 referee may issue commission under 256 referee's report to state facts and conclusions of law 256 reference of controversies under 253 howt referee selected 253 when ordered 253 reference under, not unconstitutional 254 testimony taken by referee under, must be signed and filed 257 Interest: on amount awarded in referee's report to be included in judgment. 79 when allowed on accounting 147; n. Interlocutory judgment: referee to direct the judgment to be entered 93 Interlocutory references: are discretionary I34 chancery practice in force under I39 confirmation of referee's report on 142 without notice is irregular I43 court may direct 132 definitions and statutory provisions 131 how brought to hearing 136 how far compulsory 14S may be ordered at any stage of action I34 may be terminated if report not filed 1+2 order should state full scope of reference i35 qualifications of referee in 136 referee in, vested with discretionary powers 13S referee to determine order of proof I39 referee's report in, to be filed 140 testimony of witnesses must be signed and filed 140 to take an account when ordered 146 who may bring to hearing 137 GENERAL INDEX. 441 [The references are to pages.] Interrogatories: when necessary in proceedings for contempt 122 Issues: compulsory references of 22 of parts of 22 Judge: cannot order reference of issues 19 cannot be appointed referee, when 15, 42. Judgment: appeal from, how taken 115 by whom entered 98 copy of, must be served on adverse party 99 death of party after report delivered does not prevent entry of . . 75 in foreclosure, what to contain 173 in matrimonial actions, how entered 98, 215 interlocutory, how reviewed 116 referee may order 94 notice of entry of, must be served 99 on award of arbitrators 301, 310, 311 application for, costs of 310 appeal from 311 effect of, and how enforced 311 when authorized 301, 310 on default or on pleadings 55 on reference of disputed claim 228 on report of referee, entry of 98 may be entered, when 99 reversed, does not vacate order of reference 14 taxation of costs necessary before entry of 99 when application for, necessary 99 Judgment creditor: reference for discovery in action by 276 Judgment=roll: by whom made up 98 in arbitration, what to contain 311 Jury trial: consent to reference is waiver of I3 right to, under Constitution 7 under Charter of Liberties and Privileges 3 Justification: of sureties, reference for 276 442 GENERAL INDEX. [The references are to pages.] Law: difficult questions of, prevents reference 35, 40 difficult question of, must be pointed out to prevent reference. . 36, 40 issue of, may be referred 14 Layman: may be appointed as referee 17 Legitimacy: of children may be determined by referee 212 Lien against vessel: reference in proceedings to enforce 278 Liens: advertising for, in dower 208 in partition 196 on surplus moneys 190 sale in foreclosure subject to 178 Life tenant: references in proceedings to discover 258-261 costs of, and how fixed 261 fees of referee 261" final order 261 petition to procure, what to contain 239 how presented to court 259 when proceedings under, may be stayed 259 Liquidated damages: action for, referable 25 Long account: attorney's bill in single suit is not 33 must be directly involved to authorize reference 34 physician's bill of many items is 31 reference denied, when not directly involved 34 what constitutes a 27, 32 Lunatic: committee of, reference on appointment of 276 reference on mortgage or sale of real estate of 263 See Infant. Majority of referees: powers of 84 Mandamus: reference in proceedings for 134 Marriage : action to annul, referable by consent 221 Married woman: may submit to arbitration 289 GENERAL INDEX. 443 [The references are to pages.] iVIatrimonial actions: on reference of, court must designate referee 210 references as to alimony 217 references in actions to annul marriage 221 references in actions for divorce 211 references in actions for separation 219 what actions included under the term 210 Miscellaneous references 273 See Special Proceedings. Misconduct of referee: grounds for setting aside report 78 must be affirmatively proven 78 what constitutes 78, 79 Mortgage: foreclosure of 166 See Foreclosure of Mortgages. Motions: at close of testimony 70 for confirmation of award in arbitration 303 for confirmation of report in interlocutory reference, when prema- ture 142 for judgment in action for divorce, when to be made 98, 215 for nonsuit or dismissal should be on specific grounds 70 to conform pleadings to proof 71 to vacate, modify, or correct award in arbitration 303 Moving papers: on motion for reference, what must be shown in 38-40 what to contain 39 New referee: may be appointed, when 20 Nonsuit: decision granting, need not contain findings of fact 67 dismissal of complaint equivalent to 70 motion by defendant to dismiss equivalent to 66 plaintiff may submit to, when 66 referee's duty when plaintiff submits to 66 Notice: of entry of judgment, how given 99 of exception to referee's report 100 of hearing before arbitrator, how given 295 may be waived 295 444 GENERAL INDEX. [The references are to pages.] Notice — Continued : of hearing before referee 47 either party may give 47 how served 47 insufficient, may be waived 47 irregularity of, how waived 47 must be served on all parties 48 no special form required 48 should be in writing 47 of motion for reference, what required 38 of sale, how given 177 what to state 178 of settlement of case 108 effect of omission of 109 terminating reference, when may be given 80, 81 what deemed sufficient 82 Number: of arbitrators to be appointed 283 of referees to be appointed by consent 17 of referees to be appointed on motion 41 Oath: of arbitrator 296 award invalid without 297 may be waived in writing 297 of referee 48 by whom to be administered 48 cannot be waived when infants parties 48 form of 48 how waived 48 on interlocutory references 137 presumption as to 49 to witness, administered by referee 61, 62 forms of 61 right of administering, cannot be delegated by referee...... 62 Objections: referee must be free from 41 except in matrimonial actions 42 to account in Surrogate's Court must be specific 233 to order of reference must be made on motion 41 Offer: to liquidate damages, duty of referee on 60 Opening: case for further evidence 63 sealed books in referee's office deemed contempt .• 125 GENERAL INDEX. 445 [The references are to pages.] Opinion: of referee not a report 92, 93 should be printed in case on appeal 108 Order: adjudging witness guilty of contempt may be made by referee. ... 122 of proof in discretion of referee 63 settling case to be signed by referee no to show cause in contempt proceedings may be made by referee. . 122 Order of reference: as to alimony 217-219 by consent, by whom made 14, 19 may be by judge disqualified from trial of cause 19 certified copy of, should be delivered to referee 43, 46 does not involve merits 43 form and contents 19, 43 how reviewed 43 in interlocutory references, provisions of 136 should give full directions to referee 137 in proceedings to sell real estate of infants, etc 265 in supplementary proceedings, by whom made 238 in Surrogate's Court, form and contents 277 is appealable 43 is discretionary 45 is referee's authority to act 46 may be refused when fraud involved 25 may direct hearings in different counties 43 must be in writing 19 must be made by court 19 must follow terms of stipulation 19 not affected by death of party 13 not affected by reversal of j udgment 14 objections to, how waived 41 must be made on motion 41 of disputed claims, by whom made 223 of issues in divorce, must be to hear and determine ,. . . . 211 should state what is referred 19 to ascertain damag-es by injunction 162 to compute amount due in foreclosure, requirements of 169 to examine party before trial, by whom granted 157 on what based 157 what to require 157 to hear and determine all issues of fact and of law embraced. ... 43 to take proof on default, when summons served by publication. . . . i6i cannot be made when action is in tort 161 under Assignment Law 248-251 when set aside for misconduct of referee 78 446 GENERAL INDEX. [The references are to pages.] Parties: brought in after trial begun, not bound by proceedings 58 cannot be compelled to submit to arbitration 285 court may direct new, to be brought in 71 death of, does not abate action 73 have right to be present when witness examined 59 how far competent as witnesses in action for divorce 212 referee may hold trial open to bring in new 71 Partition: court may direct reference to ascertain creditors 196 fees of referee to sell, in action for 199 judgment in, how entered 193 reference may determine validity of mortgage, in action for 198 referee may publish notice for liens 197 referee may require plaintiff to produce abstract of title in 195 referee should direct form of decree to be entered 193 reference of issues in 193 reference on default in 194 reference to sell in 198 sale in, how conducted 199 Partners: all must unite in submission to arbitration '288 Party: accounting, may be examined on oath 147 appearing by attorney, cannot appear in person 82 notice by, who has attorney, may be disregarded 82 Plaintiff: in partition to produce abstract of title 195 Principal: may ratify agent's act in arbitration 288 Printers' fees: on sale of real estate i85, n. Prisoner: attendance of, as witness, how procured 54 Proceedings supplementary, etc. See Supplementary Proceedings. Proposed amendments: to case, when to be made 108 Public oiBcer: attendance of, as witness, how procured 54 obeyance by, of subpoena duces tecum, what sufficient 54 Punishment: in proceedings for contempt 125-129 GENERAL INDEX. 447 [The references are to pages.] Qualification: of referee ~. . l6, 43. i6g Question of law: involved, action not referable 35 must be of real difficulty 36 must be pointed out in affidavit 36 Real estate: condemnation of, reference in proceedings for 277 of corporation, references in proceedings for sale of 275 Reargument: power of referee to permit, after submission of case 63 Receiver: appointment of referee to name 276 cannot stipulate for increased fees 318 of corporation, reference of controversies by 273 Referee: cannot allow amendment to add new cause of action 69 cannot delegate his powers 55 cannot delegate right to administer oaths 62 cannot grant extra allowance of costs 60 cannot order new parties brought in 71 cannot receive affidavit in proof 63 cannot strike out evidence after cause submitted 64 death of, ends reference 76 definition of 8 dismissal of complaint by 70 duty of, when evidence conflicting 91 when evidence conflicting and of equal weight 65 when defendant serves written offer to liquidate damages... 60 for what purposes appointed 10 grounds for removal by court 27 has complete jurisdiction over cause 57 has discretionary power until report delivered 63 has power to allow amendments, power not exclusive 67 how case submitted to 72 how created 9 how distinguished from arbitrator 8 if more than one, all must be present 54 if plaintiff neglects to apply for leave to bring in new parties, may dismiss complaint ' 60 in divorce actions, to be selected by court 210 in mortgage cases, to be selected by court 169 may administer oath to witness 41 may allow amendments to conform to proof 68, 70 448 GENERAL INDEX. [The references are to pages.] Referee — Continued : may begin trial anew when pleadings amended 60 may be punished for contempt 117 may compel attendance of witnesses 54 may determine order of admitting proof 57~63 may dismiss complaint SS, 70 may examine documents to determine question of handwriting. . 65 may give and extend time to file briefs, etc 72 may grant leave to plaintiff to apply to court to bring in new parties 60, 71 may grant motion for nonsuit 66 may inspect premises in dispute in presence of both parties 63 may open case for further hearing 58 may permit further testimony after party has rested 63 may punish witness for contempt 54 may render judgment on pleadings , 56 may reopen case for further testimony 72 power to punish for contempt 117 presence of, may be waived by parties 55 refusal of, to serve 20 removal of, by court 20 grounds for 21 resignation of, must be addressed to court 139 to determine order of proof in interlocutory references 139 to determine weight of testimony 65 should find facts and conclusions of law separately 89 should not discuss case with either party 78 statement of evidence of facts not sufficient, report by 90 when disqualified from- settling case Iio when judicial functions cease 96 who prohibited to act as 14, 15, 16, 42 Reference: advantages of 10 affidavit for, must be made by party 39 application for, how opposed 40 compulsory, when ordered 22 account must be involved to authorize 23, 40 not proper when executors or administrators are parties.... 24 definition of 8 ended by death of referee 76 for information of court, when ordered 149 in action for accounting will be ordered at any time to serve ends of justice 38 in actions of divorce 21 1 granting order of, discretionary 41 GENERAL INDEX. 449 [The references are to pages.] Reference — Continued : motion for, must be founded on affidavit 39 of issues by consent 13 of issues may be ordered in actions triable by court 132 of questions of fact arising on motion ISO order of, must be entered 19 must be made by court 19 proceedings on, not invalidated by death of party 75 stipulation to defeat, controlled by court 40 terminating, for failure of referee to make report 80 to ascertain damages sustained by injunction 162 to compute amount due in foreclosure 166 to examine party before trial 156 to take deposition for use on motion, when ordered 153 to take proof on application for judgment by default 161 what must be shown on motions for 38 References: of issues, in New York colony (under Dutch) i first statutory provision for 4 How far prevented by Constitution 7 prohibited by charter of " Liberties and Privileges '' 3 to hear and determine 1-125 referees and 8-10 of issues by consent 13-20 compulsory 22-35 interlocutory 131-143 interlocutory, in particular cases 145-162 for information of the court 149. to ascertain damages sustained by an injunction 162 to examine a party or witness before trial 156 of questions of fact arising on motion 150 to take proof on application for judgment by default 161 to take and state an account 146 to take depositions to be used on motion 153 in particular actions 165-228 actions to foreclose mortgages upon real estate 165-192 to hear and determine 165 to take proof and compute amount due 166 to sell 174 to surplus 186 in partition 193-198 the issues 193 on default 194 to sell 198 in actions for dower 201-208 29 ,.^ 450 GENERAL INDEX. [The references are to pages.] References — Continued : in particular actions, in matrimonial actions 210-211 for alimony 217 for divorce 211 for separation 219 to annul a marriage 221 claims against estates of decedents 223-228 in special proceedings 229-278 in Surrogate's Court 229-236 for probate, etc., in New York county 236 supplementary proceedings 238-240 for examination of garnishee in attachment 243-245 under the General Assignment Law 247-251 for examination of witnesses, etc., in aid of assignment. . 247 to take and state account of assignee 250 to try and determine disputed claims 249 of controversies under Insolvent Debtors Law 253-255 in proceedings to discover life tenant 258-261 in proceedings for collection of taxes 262-263 on sale or mortgage of real estate of infant, etc 265-267 in proceedings for voluntary dissolution of corporation. . 269-271 miscellaneous 273-278 to compel an attorney to pay over money 273 controversy by receiver of corporation 273 in proceedings for sale of corporate real estate 275 other purposes under the Code 275 under various statutes 278 References to sell: adjournment of sale to be published 180 advertising and conducting the sale 176 duty of referee on sale 180 in New York and Kings counties 177, 178, n. power of referee on sale 174 referee's fees on sale 184, 321 referee's report of sale 183 exceptions to, may be filed 184 surplus to be paid to county treasurer 182 Report of referee: cannot authorize increased costs 93 filed after notice terminating reference may be set aside 82 filing and delivery of 95 form and contents in general 84 must state facts and conclusions of law 86-89 what it should contain 86 GENERAL INDEX. 451 [The references are to pages.] Report of referee — Continued : in action of divorce 215 exceptions to, may be filed 216 in action of dower 205 must be acknowledged, proved, and certified 205 in action for foreclosure of mortgages to be confirmed 172 on sale 183 in surplus proceedings 191 in interlocutory refere-ices, when to be filed 140 if exceptions not filed, becomes absolute 141 in Surrogate's Court, not conclusive 236 must award costs 92 must direct the judgment to be entered 91 not void even if made more than sixty days from submission. . 81, 95 on demurrer 94 to state all items of account allowed 149 when to be filed or delivered 80, 95 Requests: statute relating to, repealed 72 Resettlement of case: when ordered 115 where motion for, to be read in New York City Court 115 Reversal : of judgment, when reference not vacated 14 Review: of order of confirmation of referee's report 143 Revocation: of submission to arbitration, when allowed 313 liability of party revoking 314 Rights of parties: to be determined by interlocutory decree before account taken. . . . 146 Sale: in dower, how made 209 in foreclosure, how conducted 174-184 referee may be required to give security on 174 referee's fees on 184, 320 referee's report of 183 in partition, manner of conducting 199 commissions of referee on 200 fees of referee on 199 oral reservation of crops on, binds purchaser 199 referee may take security on, when authorized by judgment. 200 referee's report on 200 452 GENERAL INDEX. [The references are to pages.] Schedule: of fees 324-328 Schedules: in referee's report on accounting 234 Searches: in partition, for what time necessary 195 Separation : action for, referable only by consent 219 for what causes permitted 220 judgment for, on report, must be on application to court 221 referee's report must be accompanied by testimony 221 what may be shown on trial 220 Settlement of case: by whom made no effect of omission of notice of 109 form of certificate of 114 manner of in must be certified by referee in notice of 108 time for, must be specified 109 when referee disqualified from no Several parcels: assignment of dower in 203 Ships and vessels: reference in proceedings to enforce lien against 278 Sittings: in references may be held in county other than that named in complaint 47 Special proceedings: references in 229-280 for examination of garnishee in attachment 243 in condemnation proceedings 277 in proceedings to compel an attorney to pay over money 273 in proceedings for collection of taxes 262 in proceedings to discover life tenant 258 in proceedings for appointment of committee of lunatic, etc.. 276 in proceedings for discovery 276 in proceedings to discharge mortgage of record 280 in proceedings for enforcement of lien against vessel 278 in proceedings before surrogate 277 GENERAL INDEX. 453 [The references are to pages.] Special proceedings — Continued : references in, miscellaneous 273^280 of controversy by receiver of corporation 23 of controversy by trustee of insolvent debtor 253 on approval of undertaking 275 ■ on sale or mortgage of real estate of infant, lunatic, etc 265 to appoint an appraiser, receiver, trustee, etc 276 to determine damages 276 to make an examination or inquiry 275 to receive further evidence on appeal 277 to take j ustification of sureties 276 under Assignment Law 247 under Highway Law 278 under Insolvent Debtors Law 253 under Transportation Corporations Law 279 under various statutes 278-280 Stenograplier: fees of, included in referee's fees only by stipulation 318-320 Stipulation: as to fees, must be in writing 49 when necessary 49, 318 who may make 50, 318 for reference of issues 14 to defeat reference, court may direct form of 41 to refer disputed claim against estate 223 Submission of case: how submitted to referee 72 time for, cannot be extended by court or judge 80 time for, may be extended by parties 80 when case deemed submitted 80 Submission to arbitration: agreement for, what to contain 283 common-law right of, preserved 282 construction of, by arbitrator, not conclusive 305 definition of 282 effect of 286 of pending action effects discontinuance, when 290 to be liberally construed 286 who may make 288, 289 agent for principal 288 attorney for client 289 copartners must all unite 288 who may not make 284, n. 454 GENERAL INDEX. [The references are to pages.] Subpoena: by whom issued in actions 52 fees must be paid on serving 53 how served 52 in arbitrations, how issued and served 297 referee may issue, in special proceedings 240, 246 Subpoena duces tecum: may be served on corporation 54 when required 53 when records not to be removed by virtue of 53 what sufficient obeyance of, by public officer 54 Summons: when may be issued by referee 136 Supplementary proceedings: debtor in, may be punished for contempt 241 may have advice of counsel 241 full and searching examination authorized in 241 oath of referee in 240 may be waived 240 referee has complete power over adjournments 240-242 referee has no power to pass upon objections 240 subpoena in, to be issued by referee 240 witnesses required to subscribe testimony 242 Sureties: justification of, reference for 276 Surplus moneys: in mortgage cases, disposition of 173 references as to 186 proceedings to obtain 187 hearing and what may be shown thereon 190 Surrogate: reference of special proceeding before 230 Surrogate's Court: references in, statutory provisions 229, 230 general rules of practice apply to 231 method of bringing on hearing 232 qualifications of referee in 231 referee's report, what to contain 234 not conclusive 236 rule in New York county 233 GENERAL INDEX. 455 [The references are to pages.] Taxes, collection of: See Collection of Taxes. Terminating the reference: for failure of referee to make report 80 how prevented 80 mode of, prescribed by statute 81 right of, not lost by extension of time to make report 81 reference to take proof in special proceedings, not terminable. .. . 142, Testimony: in action for divorce must be signed 213 in interlocutory references to be signed and filed 139 on supplementary proceedings, how taken 242 Time: for filing exceptions begins to run, when 142 Time and place of hearing: arbitrator should fix 295 referee should fix 46 Toll-gates: references as to location of 280 Tort: action founded on, not referable 26, 161 otherwise if tort waived 26 Transportation Corporations Law: reference under 279 Trial: adjournment of, may be on terms Si before referee, how brought on 47 how conducted 57 notice of, how served 47 may be served by mail 47 what is sufficient 47 time and place of, to be fixed by referee 46 Trustee: appointment of, reference for 276 of insolvent debtor, reference of controversy by 253 Umpire: authorized in arbitration 291 appointment of, must be in writing 291 Undertaking: approval of, reference for 275 Vacation: of award in arbitration, when may be made 304 motion for, what may be shown on 304 456 GENERAL INDEX. [The references are to .pagesf] Voluntary dissolution: of corporation, reference on 269-271 Warrant: of arrest in proceedings for contempt 123 of attachment in proceedings for contempt 122 of commitment in proceedings for contempt 126 Weight of testimony: duty of referee when evidence conflicting 65 referee must decide as to 65 Widow: acceptance of assignment of dower by, bars action 207 may recover damages for withholding dower 206 not entitled to be endowed in each parcel of land 204 Wife: when competent witness in action for divorce 212 Witnesses: attendance of, how procured 52 fees of, must be paid 53 may be sworn by referee 61 need be sworn but once on same trial 62 production of records by, how obtained S3 Writ of habeas corpus: may issue to bring prisoner before the referee as a witness 54 may issue to bring offender, already in custody, before the court in contempt proceedings 121 Writ of inquiry: when rehearing may be had on 144 Wrongs: compulsory reference in actions for, not ordered 25 if incidentally alleged, action for, may be referred 27 right to jury trial in action for, cannot be denied 27 [Whole Number of Pages 470.]