'11". M^ 111 i ' iV'Uj h.i' ^ ^ ' ij .11 < 11,1 f I 1-* T 1 'J, 1 i '".S ' I, ! r i 1 ,* ' t I i J J K I >L " >■ I, ti ,vv, ",. '^^,:.i,v.^,.; 1 K."i]< '. I"* 4 .. .'! V...I . 'i .. ''i', i' V , '» "^ i' , (^\xxm\{ IGam i'rliool SJibratg Cornell University Library KFN6049.P82 The law of referees :under the code and 3 1924 022 785 269 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/cu31924022785269 .^^- THE J^JsJfV \d[ t'^'^ '■'.' OF REFEREES, UNDER THE CODE AND STATUTES OF NEW YORK, BY WALTEE S. POOE. OF THE NEW TOBK BAH. NEW TOEK: L. K. STEOUSE & CO., LAW PUBLISHEES, 1888. C130236 COPTKIGHT BY WALTEK S. POOR, 1888. PREFACE. Prior to the preparation of this work but two treatises on Keferees and Eeferences had been published in this State, one by the late Charles Edwards, issued in 1860, and one by the late Hon. Murray Hoffman, issued in 1875. Both these books, excellent in their time, have been ren- dered almost obsolete by subsequent changes in the stat- utes and rules of court. This work is intended to give, in as few words as possible, the practice as it exists to-day, and to cite the authority for each proposition stated. The name and branch of the court making the decision, and the date thereof are given in each instance, enabling the reader to see at a glance the value of the ruling. The Forms have been prepared with considerable care, and will, it is be- lieved, be found sufficient for all cases that may arise, while the Tables of Contents, Table of Cases, and Sections of the Code Cited, and the Index, will enable the reader to read- ily find any subject to which he may wish to refer. "Walter S. Poor. N. T., Jtjlt, 1888. CONTENTS. PART I. CHAPTEK I. INTEODUOTION. CHAPTER II. EEFEEENOB OF ISSUES BY CONSENT. Section 1. What actions may be referred by consent 4 3. The consent to refer 5 3. Who may be referee 6 4. Order in references by consent 9 CHAPTER III. COMPULSORY EBFERKNOB OF ISSUES. Section 1. In what cases ordered 13 3. Action must be on contract 13 3. Reference cannot be compelled in actions for wrongs 13 4. Complaint determines character of action 14 5. Action must involve an account 15 6. It must be a long account ., 18 7. The account must be directly involved 19 8. The trial must not involve the decision of difficult ques- tions of law 21 CHAPTER IV. OOMPULSOEY EEFEEENOES. Section 1. Compulsory reference, application for, how made 32 3. Moving papers, contents 33 3. Application for, how resisted 34 4. What objections must be raised on motion 36 5. Stipulation to defeat reference 37 Tl CONTENTS. CHAPTER V. OEDBE OF EBFEEENOK. Section 1. Selection of referee 28 3. Order, form and contents 29 3. Reviewing the order 30 CHAPTER VI. GENERAL POWERS AND DUTIES OF REFEREE. Section 1. Authority of court over referee 32 2. Oath of referee 33 3. Bringing on the trial 34 4. Conduct of the trial 35 CHAPTER VII. POWERS AND DUTIES ON THE TRIAL. Section 1. Power to allow adjournments 40 2. Procuring and taking evidence 41 3. Reserving decision on objections to evidence 43 4. Power to allow amendments 44 5. Power to punish for contempt 48 6. Motion to dismiss 50 7. Requests to find 50 8. Jurisdiction over costs 53 CHAPTER VIII. V PROCEEDINGS SUBSEQUENT TO TRIAL. Section 1. Report, form and contents 54 2. Delivering or filing report 60 3. Fees of referee 63 4. When power of referee ceases 66 5. Setting aside the report on motion 67 6. Costs and adjustment 70 7. Entering judgment 73 8. Excepting to the report 74 9. Making and settling a case 77 10. Making and settling a bill of exceptions 80 CONTENTS. TU PAET II. INTEKLOCUTOEY EEPEEENCES. CHAPTER I. rNTERLOOUTOBT EEFBEENOES GENEKALLY. Section 1. When an Interlocutory reference may be ordered 83 3. The order; bringing on the hearing 84 3. Proceedings on the hearing 86 4. Report on interlocutory references 88 CHAPTER II. INTEKLOCTITOET EBFBEBNOES IN PAETIOTTLAE OASES. SECTiGjr 1. Compulsory reference of part of issues 93 3. Compulsory reference of incidental questions 93 3. Reference for the information of the court 94 4. Reference to take and state an account 94 5. Reference to take deposition to be used on motion 100 6. Reference of question of fact arising on motion 103 7. Reference to examine party before trial 104 8. Reference to take proof on application for judgment by default 106 9. Reference to sell chattels on foreclosure of a lien thereon. 107 PAET III. EEFEEENCES IN SPECIAL PEOCEEDINGS. CHAPTER I. General provisions applicable thereto 110 CHAPTER II. Section 1. Reference to ascertain damages caused by injunction 113 3. What damages allowed 115 3. Report of referee 117 Till CONTENTS. CHAPTER III. EEFEEEN0E8 IN SUPPLKMENTAET PKOOEEDINGS. Section 1. Order, form, and contents 118 3. Proceedings on the reference 119 CHAPTER IV. REFERENCES UNDER THE GENERAL ASSIGNMENT ACT OF 1877. Section 1. Reference under Section 21 123 8. Reference of a disputed claim 134 3. Reference to take and state the account 134 4. Report of referee on the account 126 CHAPTER V. REFERENCE OF A DISPUTED CLAIM AGAINST THE ESTATE OF A DECEASED PERSON. Section 1. Order of reference and proceedings thereon 139 3. Report of referee 131 CHAPTER VI. REFERENCES IN SURROGATE'S COURT. Section 1. When ordered 183 3. Proceedings on the reference 136 3. Report of referee 138 CHAPTER VII. SPECIAL PROCEEDINGS IN VARIOUS MATTERS. Section 1. Sale or mortgage of real estate of infant or lunatic 139 2. Proceedings to discover death of life tenant 140 3. Reference on appeal from determination of commissioner of highways 141 4. Reference of controversy by trustees of insolvent debtor.. 145 5. Reference on voluntary dissolution of corporations 147 6. Reference of controversy by receivers of corporations 148 7. Reference of controversy by receivers of insolvent insur- ance company I49 8. Reference under N. Y. Banking Act 150 CONTENTS. IX PAET IV. REFEEENCES IN PARTICULAB ACTIONS. CHAPTER I. REFERENCES IN ACTIONS FOR FOEECLOSUEE. Section 1. Reference of issues, or part of issues 152 3. Reference to compute amount due 153 3. Report of referee on reference to compute 156 4. Referee to sell, general powers and duties 157 5. Notice of sale 160 6. Re-sale 163 7. Deed of referee 163 8. Report of referee to sell 163 9. Fees of referee to sell 164 10. Reference as to surplus moneys 166 11. Report of referee as to surplus moneys 169 CHAPTER II. References in actions to foreclose a mechanics' lien 173 CHAPTER III. References in proceedings against ships and vessels 174 CHAPTER IV. EEFEEENOES IN ACTIONS FOE DOWEE. Skotion 1. Reference of issues in an action for dower 176 3. Reference to admeasure dower 176 3. Report of referee to admeasure dower 179 4. Reference as to damages in dower 180 5. Other references in dower 183 CHAPTER V. EEFEEENOES IN ACTIONS FOE PAETITION. Section 1. Reference of issues in an action for partition 184 3. Reference to sell in partition 187 X CONTENTS. CHAPTER VI. . EBFBEENOES IN MATRIMONIAL ACTIONS. Section 1. References of issues In divorce for adultery 190 2. Proceedings to judgment 193 3. Entering judgment 194 4. Reference on default In actions for adultery 197 5. Reference as to alimony and counsel fees before decree. .. 199 6. Reference as to alimony after decree 303 7. References in actions for separation 303 8. References in matrimonial actions other than for divorce or separation 304 TABLE OF CASES CITED. Page Abercrombie v. Holder, 63 N. Y. 628 139 Accessory Co. v. Garrison, 9 Abb. 141 ; 18 How. 1..41, 68, 86, 87 Ackermani). Aokerman, 14 Abb. 339 83 Ackerman v. Hunsicker, 85 N. Y. 48 170 Adams D. Bush, 2 Abb. N.S. 118. 81 Agere. Ager, 1 Law Bui. 20.... 198 Ahoyke ». "Wolcott, 4 Abb. 41.. 97 Akely ». Akely, 17 How. 21 131 Albany Bank v. Sohermerhorn, 9 Paige, 372 50 Albright v. Riker, 23 Hun, 367. 81 Aldrich ■». Reynolds, 1 Barb. Ch. 613 116 Allen V. Allen, 18 Week. Dig. 184 194 Allen V. Brown, 5 Lans. 511.115,116 Allen V. Way, 7 Barb. 585 43, 44 Am. Exoh. Bank v. Smith, 6 Abb. 1 107 Am. Ins. Co. v. Oakley, 9 Paige, 259 158 Andrew ». Whitlock, 32 Super. 633 56 Andrews ». Glenville Co. 50 N. Y. 383 /.115, 116 Andrews ». Raymond, 58 N. Y. 676 52 Anonymous, 17 Abb. 48 193 Anonymous, 3 Abb. N. 0. 161... 194, 195, 196 Anonymous, 5 Cow. 423 34 Anonymous, 3 How. 158 154 Anonymous, 5 How. 306 190 Anonymous, 28 Super. 611 196 Appleby ». Appleby, 3 Civ. Proc. Rep. 433 204 PAGg Appleton V. Warner, 51 Barb. 370 200 Arborgast v. Arborgast, 8 How. 297 195, 196, 198 Armstrong v. Bioknell, 3 Lans, 216 55 Armstrong v. Cummings, 4 Law Bui. 4 64 Armstrong v. Ferguson, 54 N. Y. 659 44 Armstrong ii. Percy, 5 Wend. 535 5 Arnold v. Egbert, 7 Week. Dig. 266 163 Ashley i). Marshall, 29 N. Y. 494 53, 58, 76 Atlantic Bank v. Hiler, 3 Hun, 309 168 Atocha V. Garcia, 15 Abb. 303.15,25 Att'y-Gen. ®. Continental Co. , 64 How. 93 90 Att'j'-Gen. v. Continental Co., 93 N. Y. 45 64, 151 Atwater v. Atwater, 53 Barb. 631 304 Austin V. Aheame, 61 N. Y. 6... 83, 84, 89, 90, 91, 104, 157, 184, 187 Austin v. Rawdon, 43 N. Y. 155 146, 149, 151 Avery v. Foley, 4 Hun, 415.... 55, 76 Avery v. Smith, 9 How. 349 133 Ayrault v. Sackett, 17 How. 461 38, 55 Ayrault v. Sackett, 17 How. 507 41 Baohe v. Dosoher, 41 Super. 150; 67 K Y. 429 159, 164 Bailey ®. Bailey, 41 Hun, 434... 191, 193 Bailey v. Bergen, 5 Hun, 555.... 58 xu TABLE OF CASES CITED. Page Bailey v. Bergen, 67 N. Y. 846. 124 Bailey v. Hanford, 10 Wend. 623 66,71 Bailey «. Johnson, 1 Daly 61.172, 173 Bain i>. Rochester, 85 N. Y. 523 72 Bainbridge v. McCullough, 1 Hun, 488; 3 T. & C. 486.. .135, 136 Baird v. Mayor, 74 N. Y. 383... 8, 30, 31, 68 Ball V. Pratt, 36 Barb. 493 108 Ballard «. Burrows, 35 Super. 206 84, 90,189 Ballou V. Parsons, 67 Barb. 19 . 70 Bailout. Parsons, llHun, 603.47,57 Ballou 11. Parsons, 55 N. Y. 673 60 Balzer v. Newlas, 35 Super. 303 76 Banc V. Neus. 2 Civ. Proo. Rep. 185 76 Bank v. Levy, 41 Hun, 461 70 Banta ii. Banta, 3 Edw. Ch. 295 37, 194 Bantes v. Brady, 8 How. 316.... 58, 74, 93 Barber®. Case, 13 How. 351.... 103 Barber v. Cromwell, 10 How. 351 34 Bard®. Steele, 8 How. 110.. .83, 157 Barker v. White, 58 N. Y. 204. 86 Barker v. White, 3 Keyes, 617 ; 5 Abb. N. S. 134 53 Barlow «. Barlow, 3 Abb. N. S. 359 308 Barnard i). Onderdonk, 98 N. Y. 158 186 Barnes v. West, 16 Hun, 68 18, 82, 93, 153 Barney v. Keith, 6Wend. 555... 72 Barron ■». Sanford, 14 How. 443; 6 Abb. 820 n 103 Barth v. Barth, 5 Law. Bui. 87. 205 Bartlett ii. Bartlett, Clarke Ch. 460 300 Bartlett J). Musliner,38 Hun,335 175 Barton i>. Pisk, 80 N. Y. 166.... 115 Barton v. Herman, 3 Daly, 330; 8 Abb. N. S. 809 33 Batehelor v. Albany Co. , 31 Su- per. 846 15, 16, 17 Bates D. James, 10 Super. 45.... 108 Page Battell V. Torrey, 65 N. Y. 394. 189 Batzel 1). Batzel, 42 Super. 561 . 190 Beach v. Gregory, 8 Abb. 78 ... . 77 Beach «. Raymond, 3 E. D. S. 496 88,41 Reals V. Congregation, 1 E. D. S. 654 172 Bean B. Edge, 46 Super. 655 47 Bear v. Am. Rapid Tel. Co. 86 Hun, 400 71 Beardsley v. Dygert, 3 Den. 380 13 Bechstein v. Schultz, 19 Abb. N. C. 168 163 Beck o. Sheldon, 48 N. Y. 365.. 76 Becker v. Becker, 47 Barb. 497. 107 Bedell v. Bedell, 1 J. Ch. 604... 302 Beekman v. Gibbs, 8 Paige, 511 169 Beekman Co. v. First Soc, 39 Barb. 658; 18 How. 481.. ..94, 169 Bell 1). Mayor, 10 Paige, 49.. 178, 179 Bellt). Mayor, 11 Hun, 511 16 Bell «. Vernoy, 18 Hun. 135. .4,5,10 Benedict v. Benedict, 76 N. Y. 600 113 Benedict «. Cooper, 3 Dem. 363; 3 How. N. S. 88... 4, 5, 7, 133, 185 Benedict v. Dixon, 47 Super. 477 114 Bennett v. Austin, 10 Hun, 451. 69 Bennett v. Buchan, 76 N. Y.886 57 Bennett t). Gould, 37 Hun, 366.. 130 Bennett v. Lake, 47 N. Y. 93... 45, 46, 47 Bensel v. Gait, 3 Hun, 679 17 Bergen v. Cameron, 79 N. Y. 146 168, 169 Bernhardt «. Lymburner, 85 N. Y. 173 158,159 Berrian v. Sanford, 1 Hun, 635 . 48, 44 Betts ». Eagleton Co. 1 N. Y. St. Rep. 241 23, 34 Bicknell v. Byrnes, 33 Hoiv. 486 160, 163, 168 Bihin v. Bihin, 17 Abb. 19.. ..73, 204 Biglln V. Pickney, 80 N. Y. 686 55 Billings D. Baker, 6 Abb. 313... 11, 34, 48 Billings «. Vandorbeck, 15 How. 395 8, 9,40 TABLE OF CASES CITED. xm Page Bingham v. Disbrow, 37 Barb. 34; 14Abb. 251 119 Birkbeck ■». Hoboken Boats, 17 Johns. 54 174 Bishop V. Empire Co. 37 Super. 13 60 Bishop «. Main, 17 How. 162.... 70 Bissell V. Bissell, 1 Barb. 430... 200 Bissell V. Hamlin, 13 Abb. 32... 38 Black V. Avery, 1 Civ. Proc.193 105 Blaokstone Bank v. Bogart, 41 Super. 293 18, 20 Blake v. Lyon Co. 77 N. Y. 626 9,34 Block 11. Block, 27 Hun, 296 .... 197 Bliss V. Bliss, 1 N. Y. St. Eep. 381 191 Bloodgood «. Bloodgood, 59 How. 42 63 Bloodgood V. Bloodgood, Daily Reg. Ap'l 30, 1884 195 Bloore«. Potter, 9 Wend. 480.. 13, 31 Blott®. Rider, 47 How. 90 193, 194, 195 Blunt V. "Whitney, 5 Super. 4 5 Bockes V. Hathom, 20 Hun, 503 155 Bockes V. Lansing, 74 N. Y. 437 45 Bokel J). Bokel, 3 Edw. Ch. 376 196 Bolton V. McCuUough, 2 How. 165 23 Bonesteel «. Lynde, 8 How. 236 37 Bonner v. McPhall, 31 Barb. 106 9, 10, 11, 31, 34, 85, 111 Bonynge v. Field, 81 N. Y. 160 63 Borrodaile v. Borrodalle, 1 Edw. Ch. 40 191 Bortle u. Mellen, 14 Abb. 228. . 76 Boughton V. Flint, 74 N. Y. 476 137 Bowman v. Sheldon, 8 Super. 607 83, 93, 93, 94 Bowne «. Leveridge, 8 Abb. N. C. 148 n 87, 91 Boyd V. Bigelow, 14 How. 511.. 133 Bradford a. Kimberly, 3 J. Ch. 431 99 Brady v. Kingsland, 67 How. 168 165 Bradley v. McLaughlin, 8 Hun. 545 57 Page Bradstreet v. Bailey, 4 Abb. 233 97 Bray v. Poillon, 3 Hun, 383 ; 5 T. & C. 663 115, 116 Breese v. Busby, 13 How. 485... 157, 160 Breese v. Bange, 2 E. D. S. 474 108 Brett e.First Soc. 63 Barb.610. 46,47 Brevoort«.Warner,8How.33..195, 97 Brewer v. Isish, 12 How. 481... 75, 77, 79 Brick V. Fowler, 61 How. 153... 63 Bridger v. Weeks, 30 N. Y. 328 78 Briggs V. Boyd, 56 N. Y. 289.... 76 Brink v. Republic Co. 2 T. & C. 550 13, 16, 17, 18, 26, 30 Brinkley v. Brinkley, 50 N. Y. 184 200 Brockett v. Bush, 18 Abb. 337.. 129 Broderick v. Poillon, 2 E. D. S. 554 173 Brooklyn Co. v. Reid, 21 Hun, 273 13 Brookman v. Hamill, 43 N. Y. 554 174 Brooks V. Christopher, 13 Super. 216 43,44 Brooks «. Schultz, 28 Super. 656 100,101 Brown «. Bradshaw, 8 How. 176 25 Brown v. Brown, 27 Super. 688.. 30, 31, 178 Brown e. Grupp, 10 Week. Dig. 357 77 Brown v. Mayor, 9 Hun, 587.83, 103 Brown «. Mayor, 11 Hun, 31.... 83 Brown v. Windmuller, 36 Super. 75 64,65,70,71 Browning v. Marvin, 5 Abb. N. C. 285 33, 111 Brush V. Lee, 3 Abb. N. S. 204. 77 Brush V. MuUany, 12 Abb. 344. 106 Buchan v. Rintoul, 70 N. Y. 1.. 135 Buchanan v. Cheeseborough, 12 Super. 338 23 Buckingham v. Payne, 36 Barb. 81 55,56 Buoklin ». Chapin, 53 Barb. 488; 35 How. 155 5, 10, 130 XIV TABLE OF CASES CITED. PAOE B Hock V. Bemis, 40 Hun, 623. 40, 47, 48 Burdiok v. Hale, 13 Abb. N. C. 60 52 Burhans b. Van Zandt, 7 Barb. 91 91 Burkitt e. Harper, 79 N. Y. 273 173 Burnett v. Gould, 37 Hun, 366.. 130, 132 Burnett v. Phalon, 11 Abb. 157; 19 How. 530 43, 48 Burnett o. Snyder, 41 Super. 342 103, 104 Burr V. Burr, 10 Paige, 30 204 Burrows ». Dickinson, 35 Hun, 493 67,69 Burtis 1>. Burtis, Hopk. Ch. 557 195 Bushnell «. Eastman, 2 Abb. N. S. 411 19 Butler i>. Yates, 5 Hill, 374 41 Byass «. Smith, 17 Super. 679.. 48 Byron v. Delameter, 1 Law Bui. 62 17 Byrne v. Groot, 5 Law Bui. 56.. 65,71 Cagger v. Lansing, 64 JST. Y. 417 58 Cameron v. Freeman, 18 How. 310; 10 Abb. 333 3, 19, 84, 94 Camp V. IngersoU, 86 N. Y. 433 12, 16, 17, 19, 24, 25, 83, 93 Campbell B.Erving, 43 How. 258 182 Carpenter v. Wright, 17 Super. 655 114 Carr v. Berdell, 33 Hun, 130.. ..17, 37 Carroll v. Hughes, 5 Redf. 337.. 137 Carroll v. Lufkln, 29 Hun, 17... 8, 9, 67, 68, 69 Carroll v. Staten Island Co. 65 Barb. 32 76, 79 Carter ». Wallace, 3 How. J?I. S. 350 6 Casey e. James, 37 N. Y. 608... 57 Casserlyc. Wallace, 61 How. 240 184 Catlin V. Adirondack Co. 19 Hun, 889 ; 81 N. Y. 379 9 Catlin V. Catlin, 3 Hun, 378 ; 4 T & C. 664 35, 75, 90, 91, 194 CatUn 11. Grissler, 57 N. Y. 363 156 PAGE Central T. Co. i). N. R. R. Co. 18 Abb. N. C. 64; 43 Hun. 603 11, 39, 58, 83, 84, 86 Chamberlain v. Dempsey. 36 N. y. 144 154,157 Chamberlain v. Dempsey, 13 Abb. 421 163 Chambers ». Appleton, 84 N. Y. 649 17, 19 Chapin i). Dobson, 78 N. Y. 74..4o,4T Chase ». James, 16 Hun, 14.63,65,71 Chatfield v. Hewlitt, 3 Dem. 191 91, 134, 135, 136, 139 Chittenango Co. ■». Stewart, 67 Barb. 433 11, 44, 66 Church 1). Erben, 6 Super. 691.. 55 Church 11. Freeman, 16 How.394 23 Church 11. Kidd, 3 Hun, 254 69 Claflin V. Drake, 38 Hun, 144... 19 Claflin 11. Meyer, 75 N. Y. 260,. 5, 56 Clapp 11. Clapp, 38 Hun, 540... 64, 65 Clapp V. Hawley, 97 N. Y. 610..73, 74 Clark 11. Battorf, 1 T. & C. 58... 181 Clark 11. Brooks, 3 Abb. N. S. 385 83 Clark 11. Brooks, 36 How. 354... 103 Clark D. Clark, 30 Super. 63 8 Clark 11. Donaldson, 5 T. & C. 683 43 Clark «. Frisbie, 1 How. 98 54 Clark 11. Rochester, 34 N. Y. 355 71 Clark's Case, 15 Abb. 337 171 Clarkson «. Skikmore, 46 N. Y. 397 167, 170 Clussman n. Merkel, 16 Super. 402 43 Clute V. Gould, 38 Hun, 348 89 Coates V. Cheever, 1 Cow. 460.. 178, 179 Coates v. Coates, 8 Super. 664.. 114, 116 Coates V. Donnell, 48 Super. 46 45 Cobb n. West, 11 Super. 38 45 Cockey v. Hurd, 36 Super. 43; 14 Abb. N. S. 183 ; 45 How. 70 103 Codwise v. Hacker, 2 Cai. 251.. 32 Coe V. Coe, 37 Barb. 232 133 Coffin V. Reynolds, 37 N. Y. 640 4 TABLE OF CASES CITED. XT - PAGE Collier V. Munn, 41 N. Y. 143... 89 Collins V. Clark, 54 Barb. 184... 56 Collins V. Collins, 71 N. Y. 269 ; 80 N. Y. 1 200,201 Coltoni). Simmons, 14Hun, 75.. 65, 71 Comins v. Hetfield, 80 N. Y. 261 40 Commissioners v. Judges, 13 Wend. 432 142 Comstock v. Olmstead, 6 How. 77 130, 132 Conant v. Wyckoff, 1 Cai. 147... 31 Conger b. Conger, 82 N. N. Y. 603 193 Conklin v. Conklin, 17 Abb. 20n. 204 Conklin v. Taylor, 68 N. Y. 221 104 Conklin v. Wood, 3 E. D. S. 662. 173 Conley v. Petrie, 60 How. 299... 9 Conolly V. Conolly, 16 How. 224 78 Continental Co. v. Industrial Co. 1 Hun, 118 24 Conway v. Hitohins, 9 Barb. 378 22 Cooley V. Decker, 47 How. 188. 60 Cooley v. Huntington, 16 Abb. 384, n 40 Coolidge V. Coolidge, 1 Barb. Ch. 77 202 Coombs V. Wyckoff, 1 Cai. 147.. 30 Coope 1). Bowles, 42 Barb. 87... 66 Cooper V. Newland, 17 Abb. 342 155 Corcoran v. Judson, 24 N. Y. 106 116 Cordier v. Cordier, 26 How. 187 190 Corning v. Tooker, 5 How. 116 120 Cotes ». Smith, 31 How. 146.. 70, 73 Countryman «. Norton, 21 Hun, 17 7,66 Coursen v. Hamlin, 9 Super. 513 99 Cowden v. Teale, 6 Hun, 532.... 20 Crafts 1). Aspinwall, 2 N. Y. 289 158 Cram i). Bradford, 4 Abb. 193. . 154 Crawford v. Everson, 68 N. Y. 624 77 Crofut ». Brandt, 58 N. Y. 106.. 109 Crombie «. Rosenstock, 19 Abb. N. C. 312 169 Crosbie v. Leary, 19 Super. 312 11, 29, 96 Crosby v. Day, 81 N. Y. 242.... 146 PAGE Cunningham d. Cassldy, 17 N. Y. 276 158 Currie v. Cowles, 35 Super. 3.. 56, 73 Dabney v. Stevens, 10 Abb. N. S. 39 80 Daby ii. Jacob, 2 Abb. N. C. 97 188, 189 Daggett «. Daggett, 5 Paige, 509 201, 202 Dainese i). Allen, 14 Abb. N. S. 363; 36 Super. 98 78,79 Dambmann v. Butler, 2 Hun, 384; 4T. &C. 542 105 Dane v. Liverpool Co. 21 Hun, 259 82, 92,153 Darling «. Brewster, 55 N. Y. 667 96, 155 Dauchy v. Miller, 16 Abb. N. S. 100 101, 102 Davis «. Davis, 37 How. 45 203 Davis V. Davis, 75 N. Y. 221. .199,203 Davis «. Jones, 8 Civ. Proo. 43.. 120 Davis «. Leopold, 87 N. Y. 620.. 51, 55 Davis V. Van Wie, 1 T. & C. 530 80 Davis V. Walsh, 48 Super. 515.. 26 Day V. Jameson, 49 Super. 373. 3 Day i>. Mooney, 6 T. & C. 882... 76 Dean v. Empire Co. 9 How. 69.. 31 Dederick's Adm'rs v. Richley,19 Wend. 108 13, 19 De Graff v. McKinley, 38 Super. 203 19, 23 De Graw ». Elmore, 50 N. Y. 1 14 De Hart v. Hatch, 1 Hun, 238.. 103 Delafield «. De Grauw, 22 Super. 2 38, 42 Delafield v. White, 19 Abb, N, C. 104 171 Delaney ». Brett, 27 Super. 712; 1 Abb.^N. S. 421 175 De Llamosas v. De Llamosas, 62 N. Y. 618 201 De Meli v. De Meli, 67 How. 20 204 De Melt «. Leonard, 19 How. 140; 11 Abb. 252 103 Desbrough v. Desbrough, 29 Hun, 592 300 XVI TABLE OF CASES CITED, PAGE Devenbagh v. Devenbagh, 5 Paige, 554 305 Devlin «. Mayor, 6 Daly, 486 ; 54 How. 64 9, 11, 64, 66, 70 Devlimi. Mayor, 7 Daly, 466.... 63 Devlin v. Mayor, 9 Daly, 334 ; 62 How. 360 11, 28, 39, 66 Devlin ■b, Mayor, 11 Daly, 363... 38 Devoe v. Nutter, 1 Hun, 713.... 37 Dewey v. Field, 13 How. 437.... 14, 15, 16, 34 Dias v. Merle, 2 Paige, 494 97 Dickinson i). Mitchell, 19 Abb. 386 16, 18, 30 Diddell «. Diddell, 3 Abb. 167. . 190, 191 Dietz V. Dietz, 4 T. & C. 565.... 190 Dinkol V. Wehle. 11 Abb. N. C. 124 63 Disbrow «. Folger, 5 Abb. 53.. 94,190 Disbrow v. Garcia, 52 N. Y. 654 116 Disosway «. Winant, 33 How. 460 63, 145 Dittenhoefer v. Lewis, 5 Daly, 72 16, 37 Dixon V. La Farge, 1 E. D. S. 722 173 Dobbs V. Dobbs, 3 Edw. Ch. 377 198 Doe V. Roe, 23 Hun, 19 204 Dolan v. Merritt, 18 Hun, 27.... 55 Donnelly v. Donnelly, 63 How. 481 193 Dorlon v. Lewis, 9 How. 1 67, 68 Dorr V. Noxon, 5 How. 39 89 Doty V. Carolus, 31 N. Y. 547.. 78 Dougherty v. Devlin, 1 E. D. S. 635 173 Dougherty v. Valloton, 38 Su- per. 455 50 Dougherty v. Van Nostrand, Hoff. Ch. 68 99 Douglas ®. Douglas, 13 Abb. N. g. 391 300 Douglas V. Douglas, 5 Huu, 140 69 Douglas «. Douglas, 7 Hun, 373 90 Dow «. Darragh, 43 Super. 80... 33, 33, 38 Draper v. Day, 11 How. 439 14 PAGE Dresser v. "Van Pelt, 15 How. 19 119 Drury v. Wigg, 19 Week. Dig. 417 51 Duffy «. Duncan, 35 N. Y. 187.. 113 Duffy V. McManus, 3 E. D. S. 657 173 Duguid V. Ogilvie, 3 E. D. S. 537 55 Duguid ». Ogilvie, 1 Abb. 145... 38 Dunckel «. Wiles, 11 N. Y. 420 81 Dunham v. Minard, 4 Paige, 441 186 Dunkin B. Lawrence, 1 Barb. 447 114 Dunkin v. Sharp, 33 Hun, 132... 14 Dunnigna v. Crummey, 44 Barb. 528 45 Dunning « Ocean Nat. Bank, 61 N. Y. 497 168 Durant v. O'Brien, 2 How. N. S. 313 8 Dutcher v. Wilgus, 2 How, 180..4, 23 Dwight V. Northern R. R. Co. 54 Barb. 371 115 Dwight V. St. John, 25 N. Y. 203 103, 104, 110 Eagle Iron Works, 8 Paige, 385 . 83 Easton «. Pickersgill, 55 N. Y. 310 159, 163, 187 Easton «. Pickersgill, 75 N. Y. 599 159 Early v. Early, 2 How. N. S. 339 64, 303 East River Co. v. Gove, 57 N. Y. 597 : 52 Eaton V. Wells, 82 N. Y. 576.... 60 Edmonston «. McLoud, 16 N. Y. 543 119 Edwards «. Bodine, 11 Paige 333 116 Eighmy v. People, 79 N. Y. 546 10 Eleventh Ward Bank v. Hay, 55 How. 444 159 Elliot V. Lewis. 16 Hun, 581. ..30, 35 Ellsworth v. Brown, 16 Hun, 1 ; 56 How. 237 63 Ellsworth V. Lookwood, 9 Hun, 548 158 Elmore v. Thomas, 7 Abb. 70.. 84 TABLE OP CASES CITED. XVll PAGE Elwood V. W. U. T. Co. 45 N. Y. 549 42 Ely V. Taylor, 43 Hun, 305 ISl Emigrant Bank v. Goldman, 75 N. Y. 137 171 Emmons v. Wheeler, 5 T. & C. 617 179 Empire Ass'n v. Stevens, 8 Hun, 515 90, 157 Enos 11. Thomas, 4 How. 390.... 83 Erie Co. Bank v. Roof, 48 N. Y. 392 158 Erie Co. ■». Champlain, 35 How. 73 101, 102 Erie Co. ». Gould, 14 Abb. N. S. 279 101, 103 Erkenbrach v. Erkenbraoh, 96 N. Y. 456 199 Estate of Austin, 3 Law Bui. 78 136 Estate of Lilienthal, 2 Law Bui. 98 137 Estate of MoEvoy, 1 Law Bui. 64 : 138 Evans ». Kalbfleisoh, 16 Abb. ]Sr. S. 13 16, 25, 26 Evans ■». Kalbfleisch, 86 Super. 450 15, 30 Everson v. Johnson, 33 Hun, 115 182 Excelsior Co. ■». Lacy, 3 Hun, 111 51 Exchange Co. «. Early, 4 Abb. N. C. 78; 54 How. 379 33, 86, 154, 155 Executors «. Van Cortlandt, 3 J. Ch. 242 35 Ex Parte Butter, 3 Hill 464 40 Farace v. Farace, 61 How. 61... 193, 195, 198 Farmers' Bank v. Empire Co. 10 Abb. 47 57 Farmers' Bank v. Houston, 44 Hun, 567 83 Farmer's Delight ■». Lawrence, 5 Wend. 564 174 Faure i). Winans, Hopk. Ch. 383 155,156 PAGE Fellows «. Wilson, 81 Barb. 163 43 Feltu TilTany, 11 Hun, 63 16, 30 Ferguson v. Hamilton, 35 Barb. 437 80 Ferlat «. Gojon, Hopk. 478 195 Field 11. Field, 73 N. Y. 588 56 Field «. Hawxhurst, 9 How. 75 168 Fielden i>. Lahens, 6 Abb. N. S. 341 38 Fielden v. Lahens, 14 Abb. 48.. 79 I'irst Nat. Bank «. Levy, 41 Hun, 461 59 First Nat. Bank i). Tamajo, 77 N. Y. 476 62, 65,71 Fischer v. Raa.b, 58 How. 221. ..62, 64 Fischer v. Raab, 81 N. Y. 235... 63 Fisk 1). Chicago Co. 3 Abb. N. 8.430 101, 102 Flanders v. Odell, 2Hun, 664.. 16, 30 Fliess V. Buckley, 90 N. Y. 286 168, 170 Flora B. Carbean, 38 N. Y. 111. 51 Flynn v. Equitable Co. 18 Hun, 313 73 Forbes e. Meeker, 3 Edw. Ch. 453 49 Forbes v. Frary , 2 J. Cas. 234 . . . 40 Forbes v. Willard, 54 Baro. 530 ; 37 How. 198 119 Ford V. Ford, 53 Barb. 535 32, 33, 44, 45, 46, 48, 70 Ford«. David, 14 Super. 569.... 107 Ford 11. Knapp, 102 N. Y. 135.. 187 Fordham v. Smith, 46 N. Y. 683 58 Forrest ». Forrest, 16 Super. 650 83,40, 86, 87 Forrest «. Forrest, 35 N. Y. 501 26, 202 Forrest D. Kissam, 7 Hill, 468.. 56 Forsyth ». Reokenbrode, 23 Week. Dig. 470 51 Foster v. Bryan, 16 Abb. 396 ;, 36 How. 164 60, 63 Foster v. Bullock, 13 Hun, 300. 106 Fowler v. Fowler, 4 Abb. 411... 300, 301 Fox V. Moyer, 54 N. Y. 125 102, 112, 110 xviu TABLE OP CASES CITED. PAOE Fralich «. Betts, 13 Hun, 363... 175 Prane v. Vantine, 16 Hun, 528. 132 Frame v. Willets, 4 Dem, 868.. 135 Francisco v. Fitch, 25 Barb. 130 139 Franiilin i). Chapin, 53 Barb. 488 4 Franklin s. Robinson, 1 J. Ch. 1S7 99 Franklin v. Van Cott, 11 Paige, 129 88, 169, 170 Frazer «. Phelps, 6 Super. 682.. 96 Frazer ». Hurst, 18 Week. Dig. 390 47 Freeman v. Atlantic Co. 13 Abb. 124 15, 16 Freeman v. Schweder, 43 Barb. 618 169 French «. Powers, 80 N. Y. 146 77,81 Preedman v. Bierman, 43 Hun, 887 51 Frost «. Smith, 20 Super. 108... 75, 78, 80 Fuller V. Cronde, 47 N. Y. 89... 53 Fulmer v. Fulmer, 6 "Week. Dig. 33 67, 190 Gade ». Gade, 14 Abb. N. 0. 510 75, 76, 90, 194 Gallinger v. Gallinger, 4 Lans. 473; 61 Barb. 31 202 Gallup V. Miller, 25 Hun, 398... 162 Gamble e. Taylor, 43 How, 375 41 Garcia v. Sheldon, 3 Barb. 232 31, 86 Gardineri). Thomas, 34Hun, 583 70 Gates 11. Paddock, 10 Wend. 528 178 Gauhn s. Mills, 3 Abb. N. C. 114 174 Gautier v. Douglass, 39 Hun, 642 90 Geef ». Ransom, 5 Redf. 578.. 136, 137 Geib V. Topping, 83 N. Y. 46 ... 62, 63, 64, 90 Gerard v. Gerard, 2 Barb. Ch. 73 201 German Sav. Bank «. Sharer, 25 Hun, 409 167. 169, 170 PAGE Gibson «. Pearsall, 1 E. D. 8. 90 41,88 Gibson ». Stetzer, 3 Plun, 539... 75 Gilbert v. Hotchkiss, Daily Reg. Jan. 2, 1883 69 Gilliland v. Campbell, 18 How. 177 '. 52,53 Glauoius V. Black, 50 N. Y. 145 56 Gliok V. Glick, 5 Law Bui. 62... 193 Godding v. Porter, 17 Abb. 374 62, 113, 131, 138, 148 Godfrey v. Williamsburg Co. 13 Abb. N. S. 250 14,25 Goodrich d. Thompson, 37 Su- per. 75 42 Goodridge v. New, 18 How. 189 89, 94 Goodyear ». Brooks, 37 Super. 682" 4, 12, 21, 23, 25, 154 Gori 1). Smith, 29 Super. 563.. .71, 73 Gormerly v. MoGljTin, 84 N. Y. 284 51,53,77 Gould ■». Chapin, 4 How. 185.... 72 Gove V. Hammond, 48 How, 885 55, 57 Graham v. Chrystal, 2 Keyes, 31 76 Graham v. Golding, 7 How. 260 19, 83, 84 Grahams?). Norton, 6 Wend. 552 32,40 Grant ». Morse. 22 N. Y. 323..51, 55 Grattan 1). Met. L. T. Co. SON. Y. 281 47 Graves v. Blanchard, 4 How. 300 11, 29, 52,88 Gravest. Lake, 12 How. 33 121 Gray «. Fisk, 42 How. 135.. 67, 68, 69 Green D. Brown, 3 Barb. 119.... 43 Green J). Day, 1 Dem. 45 136 Green i). Patchen, 13 Wend. 293 5 Green v. Winter, 1 J. Ch. 26.... 89 Greenwood v. Marvin, 39 Hun, 99 63, 63, 67, 68 Gregory D.Campbell,16 How.417 156 Gregory v. Cryder, 10 Abb. N. S. 289 60,67 Gregory v. Seaman, 51 Super. 517 15. 17 TABLE OP CASES CITED. XIX Page Griffin «. Griffin, 33 How. 183... 195, 200, 305 Griffin v. Miner, 54 Super. 46 ... 38 Griffith V. Hadley, 33 Super, 588 158 Griffltiis V. Plielps, 31 Week. Dig. 890 75,78 Grisoom v. Mayor, 13 N. Y. 586 55, 79 Guard. Sav. Bank b. Bowling Green Bank, 65 Barb. 375 148 Guivinan v. Carroll, 4 Law Bui. 6 165 Gunning v. Loekman, 3 Redf. 273 136 Hale «. Swinburne, 17 Abb. N. C. 381 8, 10, 17, 39 Hall V. Hall, 5 Law Bui. 91 193, 196, 198 Hall V. Patridge, 10 How. 188.. 187 Hallock ». Hallock, 4 How. 160 201 Hallock v. Woolsey, 33 Wend. 328 144 Halsey v. Carter, 39 Super. 535 35, 60 Halstead s). Halstead, 55 N. Y. 442 169, 186 Hamburger «. Hamburger, 46 How. 346 196 Hamilton v. Morris, 7 Paige 39. 186 Hamilton ®. Proudflt, 19 Super. 191 78 Hancock i). Hancock, 23 N. Y. 568 73 Haners. Bliss, 7 How. 346. ...10, 30 Hanford v. Hanford, 3 Edw. Ch. 468 196 Hannahs i>. Hannahs, 68 N. Y. 610 89 Hanks i). Hanks, 3 Edw. Ch.469 194 Happy v. Mosher, 48 N. Y. 313. 175 Harden e. Corbett, 6 Hun, 523. 15 Harding ■». Harding, 43 Super. 27 191, 193,195, 197 Haring «. Hoppock, 10 Super. 20 108 Harlem Bank i). Todd, 4 Week. Dig. 74 69 Page Harper v. Harper, 5 Week. Dig. 460 191 Harrington v. Bruce, 84 N. Y. 103 15, 17, 30 Harris v. Bradshaw, 18 Johns. 36 5 Harris v. Fly, 7 Paige, 421. ..155,156 Harris ». Mead, 16 Abb. 257 18 Harrison i). Peck, 56 Barb. 351 179, 181 Harti). Hatch, 1 Hun. 338 103 Hart V. Hudson, 13 Super. 394. 45 Hart 11. Small, 4 Paige, 388.... 34, 35 Hart V. Trotter, 4 Wend. 198 ... 33 Hart V. Wandle, 50 N. Y. 381 . . 158, 160 Harteau v. Deer Park Co. 1 Hun, 493 49 Hartford Co. v. N. Y. Co. 36 Super. 411 76 Hatch 1). Fogarty, 30 Super. 488 77 Hatch «. Pryor, 3 Keyes, 441 ... 42 Hatch 1). Stewart, 43 Hun, 164.. 130, 131, 132 Hatch 0. Wolfe, 1 Abb. N. S. 77; 30 How. 65 13, 31 Hathaway ii. Russell, 45 Super. 539 39, 58, 70, 74, 77, 95, 184 Hathaway v. Russell, 46 Super. 103 94, 95, 184 Hawkins v. Appleby, 4 .Super. 421 45 Hawkins v. Avery, 33 Barb. 551 4, 32, 26, 35 Hazen v. Thurber, 4 J. Ch. 604. 181 Healy v. Oilman, 29 Super. 479 6 Hearn «. Sullivan, 13 Abb. N. C. 371 131 Heatherton ii. Heatherton, 1 Week. Dig. 27 194 Heartt ». Corning, 3 Paige, 566 99 Heerdt v. Wetmore, 35 Super. 697 48, 49 Heilman v. Hammond, 13 Hun, 474 77 Helm v. Link, 53 Super. 547... 58, 77 Hemmingway v. Poucher, 98 N. Y. 381 76 xx TABLE OF CASES CITED. Paoe Hendriokson «. Dixon, 19 Hun, 390 131 Hennessey ii. Hennessey, 58 How. 304 192 Henry i). Henry, 3 Dem. 383 ; 1 How. N. S. 297 135 Herforth v. Hertorth, 2 Abb. N. S. 483 138, 300, 201 Herschell v. Rogers, 2 Law Bui. 15 65,71 Heroy ^. Kerr, 21 Super. 194... 58 Hertwell i). Albert, 3 Law Bui. 77 17 Heyd« ii. Heyde, 6 Super. 692... 197 Hlbbard «. Haughian, 70 N. Y. 54 81, 105 Higgins V. "Wright, 43 Barb. 461 33 Hobart v. Frost, 13 Super. 673; 3 Abb. 119 119 HobartD.Hobart, 33Hun,484...65,66 Hobart v. Hobart, 86 N. Y. 636 166, 188 Hoohstetter i). Isaacs, 14 Abb. N. S. 235 40, 45, 48 Hoffman v. aEtna Co. 24 Super. 501 80 Hoffman i). Burke, 19 Week. Dig. 347 163 Hoffman v. Burke, 21 Hun, 580 161 Hoffman i>. Sparling, 13 Hun, 83 14 Holbrook i>. Receivers, 6 Paige 220 94 Holden v. N. Y. Bank, 72 N. Y. 386 43 HoUerman i). Hollerman, 1 Barb. 64 300 Holley 1). Glover, 9 Paige 9.. ..85, 95 Holmes d. Bennett, 38 How. 389 22, 23 Holmes V. Davis, 19 N. Y. 488. 178 Holmes v. Richmond, 19 Hun, 634 108 Holmes v. Slooum, 6 How. 217. 45 Hooley i). Gieve, 9 Abb. N. C. 8 99 Horrocks v. Thompson, 27 Hun, 144 39 Hosaok «. Heyerdahl, 38 Super. 1391 16, 17, 31 Page Hotchkiss «. Clifton Co. 4 Keyes 170 159 Hotchkiss®. Piatt, 8 Hun, 46; 66 N. Y. 620 115 Houlahan v. R. R. Co. 24 How. 155 37 Hovey «. Rubber Tip Co. 50 N. Y. 385 115, 116 Howard «. Park, 59 How. 344... 114 Howe ®. Muir, 4 How. 353 71 Howell ». Kinney, 1 How. 105.. 63 Howland v. Howland, 30 Hun, 473 73 Hoyti). Bonnett, 50 N. Y. 538.. 130 Hoyt «. Hoyt, 31 Super. 511 46 HubbellD. Schreyer, 4 Daly, 363 174 Hudson «. Guttenberg, 9 Abb. N. C. 415 73 Huelet D. Rogers, 1 Abb. N. S. 27 103, 104 Hudson «. Plots, 11 Paige 180.. 121 Hulbert ii. McKay, 8 Paige 652 168, 169 Hull «. Allen, 66 How. 134 16, 26 Hulsam «. Wiles, 11 How. 446.. 110 Humphreys «. Humphreys, 49 How. 140 ; 196 Hunneman ii. Waterbury, 18 Super. 686 73 Hur.t V. Lawless, 7 Abb. N. C. 113 43 Hurst !). Enoch, 6 Abb. 212 120 Husted V. Dakin, 17 Abb. 137... 168 Hyatt i>. Roach, 1 Abb. N. C. 125; 52 How. 115 14 Hyde v. Hyde, 4 Wend. 630.. 178, 179 In re Josephine, 39 N. Y. 19.... 174 Ingersoll ». Bostwick, 33 N. Y. 425 73, 78 Ingraham v. Gilbert, 20 Barb. 151 56 InnesD. Purcell, 2 T. i C. 538.. .65, 71 Irwin V. O'Connor, 15 Week. Dig- 124 1.56 Irwin V. O'Connor, 6 Civ. Pl-oc. 360 121 Ives V. Vandewater, 1 How. 168 21 TABLE OF CASES CITED. XXI PAGE I Jackson «. Anderson, 4 Wend. 474 108 Jackson ». De Forest, 14 How. 81 18 James v. Cowing, 82 N. Y. 449. 53 Jansen v. Tappen, 3 Cow. 339. . 4 Jaques v. Morris, 3 E. D. S. 639 173 Jarvis ». Jarvis, 66 Barb. 331... 55 Jenks«. Parsons, 3 Hun, 667... 172 Jewell V. Van Steenburgh, 58 N. Y. 85 81 Johnson ». Elwood, 83 N. Y. 363 113,114 Johnson «. Grey, 6 Cow. 54 41 Johnson i>. Mcintosh, 31 Barb. 267 45 Johnson v. Parmly, 17 Johns. 129 13 Johnson ». Whitlook, 13 N. Y. 344; 13 How. 571 55, 77, 78, 79 Johnson «. Youngs, 65 N. Y. 599 69 Jones v. Bridge, 33 Super. 431.. 76 Jones V. Carroll, 5 T. & C. 631.. 178 Jones ». Jones, 3 Barb. Ch. 146 300 Jones ». Jones, 1 N. Y. St. Rep. 759 6 Jones «. Wakefield, 31 Week. Dig. 287 71 Jordan v. Hyatt, 3 Barb. 375.... 5 Jordan v. Volkenning. 73 N. Y. 300 115 Joslyn 11. Joslyn, 9 Hun, 388.... 45 Judson ». Gray, 11 N. Y. 408... 63 Judson ®. Gray, 17 How. 389.... 66 Kain v. Delano, 11 Abb. N. S. 39 12, 13, 19, 33, 35, 26, 30 Kain ». Fisher, 6 N. Y. 597.... 181 Kaiser «. Kaiser, 16 Hun, 602... 204 Kamp V. Kamp, 59 N. Y. 313... 199 Katt V. Germania Co. 36 Hun, 439 33 Kaufman v. Thrasher, 10 Hun, 438 131 Kearney «. McKeon, 85 N. Y. 136 73,138 Keator ». Ulster Co. 7 How. 41 5, 9, 33 Page Kechler v. Stumme, 86 Super. 837 173 Keep V. Keep, 58 How. 139.. ..17, 19 Keep D. Keep, 17 Hun, 153 5 Keeler v. Poughkeepsie Co. 10 How. 11 19,23 Kelly V. Charlier, 18 Abb. N. C. 416 89,91, 104 Kelly V. Eckford, 5 Paige, 548.. 97 Kelly V. Searing, 4 Abb. 354.... 155 Kelly V. Sheehan, 76 N. Y. 325. 74 Kellogg V. Clark, 23 Hun, 393,. 133 Kellogg V. Werner, 6 Hun, 453. 181 Kemple v. Darrow, 39Super. 447 51 Kennedy ». Kennedy, 73 N. Y. 869 204 Kennedy «. Shilton, 1 Hilt. 54C 31 Kennedy v. Shilton, 9 Abb. 157. 20 Kepler v. Merkle, 9 Civ. Proo, 284 188, 189 Kerslake v. Sohoonmaker, 1 Hun, 436 44 Ketohum v. Clark, 22 Barb. 319 84, 88, 93, 95 Kettell V. Rathbone, 4 Paige, 103 .,. 136 Kiersted ii. O. & A. R. R. Co. 54 How. 39 9, 67 King V. Greenway, 71 N. Y. 413 174, 175 King V. Leighton, 58 N. Y. 383. 104 King V. Piatt, 37 N. Y. 155 160 King 11. Talbot, 40 N. Y. 76 89 King V. West, 10 How. 333 168 Kingslands. Chetwood, 39 Hun, 603 166, 168 Kinzey v. Kinzey, 7 Daly, 460.. 200 Kirby ii. Fitzpatriok, 18 N. Y. 484 94 Kissam n. Hamilton, 30 How. 369 55,74 Klein v. Wolfsohn, 1 Abb. N. C. 134 205 Knapp 11. Fowler, 26 Hun, 200.. 48 ,Kook V. Kock, 43 Barb. 515 300 iKooh V. Pursell, 45 Super. 163. 164 Krill V. Brownell, 40 Hun, 73... 181 Kyle 11. Kyle, 67 N. Y. 400.. .129, 181 xxu TABLE OF CASES CITED. La Farge i). Van Wagonen, li How. 54 163 Lane i). Borst, 38 Super. 609.... 55 Lane i}. Conger, 10 Hun, 1 158 Langley i). Hickman, 3 Super. 681 40 Lansing 'v. Lansing, 45 Barb. 182; 31 How. 55 89, 136 Lansing i). Stone, 37 Barb. 15... 14 Larliin ii. Maun, 2 Paige 27 186 Larkin v. Mason, 103 N. Y. 680. 131 Larkin ». Robbins, 3 Wend. 505 5 Larrour «. Larrour, 2 Redf. 69. 135 Lathrop v. Bramtiall, 3 Hun, 394 43 Latiirop 1). Bramliall, 64 N. Y. 365 43,44 Lathrop ii. Clapp, 40 N. Y. 328. 130 Lawrence i). Lawrence, 3 Paige, 267: 201, 202, 204 Lawton v. Commissioners, 2 Cai. 194 143 Lawton ®. Green, 5 Hun, 157.... 114 Lawton v. Green, 64 N. Y. 326. 113, 115, 116 Lazarus ». Heilman, 11 Abb. N. C. 93 83 Leach ». Kelsey, 7 Barb. 466 ... 42 Leavitt i). Dabney, 9 Abb. N. S. 373; 40 How. 289 116 Le^ycraft ii. Fowler, 7 How. 259 5 Ledoux V. B. R. Co. 61 N. Y. 613 76 Lee*. Tillotson, 24 Wend. 337. 5, 11, 14, 16, 29 LefQer v. Field, 33 How. 385. 66, 79, 80 Leffler v. Field, 50 Barb. 407.... 75 Leffler d. Field, 47 N. Y. 407.... 51 Lehmaier v. Griswold, 46 Super. 11 119 Leiegne ■». Sohwarzler, 10 Daly, 547 173 Leinen i). Elten, 43 Hun, 249.... 186 Leitoh !). Brotherson, 25 How. 407; 16 Abb. 384 38, 41, 62 Leland i). Cameron, 31 N. Y. 115 78 Leland v. Smith, 3 Daly, 309.... 34 Leonard ». Mulry, 93 N. Y. 392 66, 67, 80 Leroy v. Halsey, 8 Super. 589... 120 Leslie v. Leslie, 6 Abb. N. S. 193 ; 10 Abb. N. S. 69 201, 303 Levy V. Brooklyn Co. 25 Wend. 687 15,16 Levy's Accounting, 1 Abb. N. C. 177 138 Lewis ». Lewis, 3 J. Ch. 519.... 300 Liliendoll v. Doe, 14 Johns. 333 108 . Lillis V, O'Couner, 8 Hun, 280.. 73 Lincoln t). Lincoln, 29 Super. 525 191 Linden v. Linden, 36 Barb. 61 . . 191, 193, 195 Litchfield v. Burwell, 5 How. 341 10 Little 11. Bigelow, 2 How. 164... 23 Little V. Lynch, 99 N. Y. 112... 64 Livermore e. Bainbridge, 44 How. 357 67 Livermore ». Bainbridge, 47 How. 350 68 Livermore c.Bainbridge,14 Abb. N. S. 237 45, 68 Livingston v. Gidney, 35 How. 1 63 Livingston v. Meldrum, 19 N. Y. 440 167 Lockyer -o. Lockyer, 1 Edm. 107 194 Lockwood «. Fox, 61 How. 522 165, 166 Loomis v. Loomis, 51 Barb. 357 76 Longley v. Hickman, 3 Super. 681 41 Loonam v. Meyers, 1 N. Y. St. Rep. 276 51 Lord t). Conner, 48 How. 95 23 Lottimer v. Lord, 4E, D. S. 183 91 Lowenthal i). Mayor, 61 Barb. 511 60, 67 Luddington v. Taft, 10 Barb. 447 10, 53 Ludlow 11. Am. Ex. Bank, 59 Barb. 509 18 Lusher «. Walton, 1 Cai. 149.... 24 Luysten ii. Sniffln, 1 Barb. 428.. 79, 81 TABLE OP CASES CITED. XXIU Page Lyddy d. Chamberlain, 34 Hun, 377 80 Lynch v. Meyers, 3 Daly, 356... 65 Lyon V. Lyon, 63 Barb. 138.. 193, 196 Lyon V. Scott, 34 Super. 41 45 MoAlear «. Delany, 19 "Week. Dig. 353 187 McAndrew ». Place, 5 Hun, 285 37 McCall V. Moschowitz, 1 N. Y. St. Rep. 99 30 McCartan «. Van Syckel, 23 Su- per. 694 11, 39, 59, 96 McCleary •». McCleary, 30 Hun, 154 191, 192 MoComb v. Wright, 4 J. Ch. 659 160 McCoun 11. Rowley, 19 Wend. 85 22 McCraoken v. Valentine, 9 N. Y. 43 84, 95, 111, 153 McCrea v. McCrea, 58 How. 330 190 McCredie t>. Senior, 4 Paige, 378 49 McCue ». Tribune Assn. 1 Hun, 469 100, 101, 102 McCuUough V. Brodie, 13 Su- per. 659; 13 How. 346 ...13, 13, 15 McDonald «. Garrison, 9 Abb. 34; 18 How. 249 106 McDonald «. James, 38 Super. 76; 47 How. 474 115 McDonald v. Malloy, 46 Super. 58 73 McDonald •». Neilson, 3 Cow. 139 107 McDonnell v. Stevens, 9 Hun, 38 30 MoGowan v. Newman, 4 Abb. N. C. 80; 54 How. 458 86. 155 McGuffln B. Dinsmore, 4 Abb. N. C. 341 105 McKeon v. Horsfall, 88 N. Y. 439 109 McKeon ». See, 37 Super. 449... 84 McLaughlin v. Teasdale, 9 Daly, 33 1C8 McLean v. Cole, 13 Hun, 300... 77 McLean v. East River Co. 31 Super. 700 15 McMahon ». Allen, 7 Abb. 1.... 73 McMaster ». Booth, 4 How. 437 14 Page McMurray v. Rawson, 3 Hill, 59 1 MoNamara v. MoNamara, 9 Abb. 18; 3 Hilt. 547 203 McNeil 1). McNeil, 3 Edw. Ch. 550 198 MoPherson v. Romer, 40 Super. 448 48, 67, 69 McQuien ®. McQuien, 61 How. , 280 202 McSorley v. Hogan, 1 C. R. N. S. 285 173 McWhorter «. Remsen, Hopk. Ch. 28 89 Macy V. Nelson, 62 N. Y. 638... 180 Magie ®. Baker, 14 N. Y. 435... 78 Magown v. Sinclair, 5 Daly, 63.. 1, 19 Maher «. O' Conner, 1 (Jiv. Proc. 158; 61 How. 103 165, 166, 185 Main«. Pope, 16 How. 271. ...71, 72 Manhattan Co. ». Evertson, 4 Paige, 276 95 Manley «. Ins. Co. 1 Lans. 20... 55 Manning «. Monaghan, 23 N. Y. 539 108 Mantles v. Myle, 26 How. 409... 62 Marble v. Lewis, 53 Barb. 432 ; 36 How. 337 178, 181 Marckwald v. Ocean Co. 8 Hun, 547 80 Marie •». Garrison, 1 How. N. S. 32 32 Mark v. Buffalo, 87 N. Y. 184; . 62, 63, 71 Marsh v. Kinney, 11 Week. Dig. 144 43 Marshall «. Meech, '51 N. Y. 140 103, 104 Martin ■». Hodges, 45 Hun, 38. . 90, 104 Martin v. Lowenstein, 68 N. Y. 4.56 164 Martin v. Smith, 53 Super. 377. 60 Martin «. Spofford, 3 Abb. N. C. 54 105 Martin v. Windsor Co. 10 Hun, 304; 70N.Y. 101. ..3, 13, 15, 25, 30 Marvin v. Inglis, 39 How. 329.. 77 Maryot«.Thayer,39 Super.417.15, 20 XXIV TABLE OF CASES CITED. Page Mason ». Lee, 33 How. 466 121 Mason ». Mason, 1 Edw. Ch. 378 303 Masterton v. Howell, 10 Abb. 118 17, 3o Masten «. Buddington, 18 Hun, 105 133 Matter ol Atty.-Gen. ». Continen- tal Co. 64 How. 93.... 113 " Austin, 44 Barb. 434.... 148 " Bank of JSIiagara,6 Paige, 318 89 " Bannister, 1 Law Bui. 9 100 " Bliss, 39 Hun, 594 199 " Bohm, 4 Hun, 558 110 " Boniler, 8 Daly, 75 110, 111, 134 " Bookhout, 31 Barb. 348 140 " Bryce, 10 Daly, 18 123 " Brown, 10 Daly, 115.... 132 " Burtnett, 8 Daly, 363... 133 " Congdon, 2 Paige, 566.. 140 " Continental Co. 37 Hun, 524 63, 64 " Cotlow, 5 Abb. N. C. 301n 134 " Cowing, 36 Hun, 214 120 124 " Crooks, 23 Hun, 696.... 40, 43, 48, 87, 88 " Crosby ». Day, 81 N. Y. 243 148 " Denny, 3 Hill, 230 145 " Douglas, 3 Redf. 538.... 136 " Dryer, 10 Daly, 8 112, 136, 137 " Elmore, 10 Daly, 48 127 " Bveritt, 10 Daly, 99 133 " Eairohild, 10 Daly, 74.. Ill, 124, 126, 137 •• Foster, 3 Redf. 533 138 •' Friedman, 83 N. Y. 609 113 " Goldsmith, 15 Week. Dig. 110 133 " Gray, 42 Hun, 411 189, 131, 133 " Guardian Sav. Inst'n, 9 Hun, 367 90 Page Matter of Guard Sav. Inst'n s. Bowling Green Bank, 65 Barb. 375 94 " Hall, 7 Abb. N. C. 149. 135, 136, 137 " Harmony Co. 14 Abb. N. 8. 292 n 149 " Holbrook, 99 N. Y. 539 133, 133 " Hulbert, 9 Abb. N. C. 133 127 " Ives, Daily Reg. Sept. 14, '87 110, 111, 113, 133, 134 " Jeselson, 10 Daly, 104. . 124 " Johnson, 10 Daly, 123.. 126, 127 " Jones, 2 Barb. Ch. 33... 140 Kapelovioh, 32 Week. Dig. 13 132 ' ' Knapp, 8 Abb. N. C. 308 91 " Kraus, 4 Dem. 317.. 113, 138 " Lampmann, 22 Hun, 339 140 " Lefflngwell, 30 Hun, 538 88 " Mellvaine, 15 Abb. 91.. 139 " Marklin,13Daly,105..38,136 " Manahan, 10 Daly, 39... 136 " Marsac, 15 How. 383.. 89, 94 " Mason, Hopk. Ch. 122.. 140 " May, 13 Daly, 34 128 " Philips, 10 Daly, 47 112, 126, 13T " Pollock, 3 Redf. 100.... 137 " Potter, 10 Daly, 133 137 " Pyrolusite Co. 39 Hun, 439 147 " Receivers of Globe Co. 6 Paige, 103 94 " Rhinebeok Co. 8 Hun, 34 104 " Rich, 3 Redf 177 136 " Rindskopf. 13 Daly. 26 133 " Russell, 3 Dem. 377.. 113, 138 " Sohaller, IJ Daly, 57.... 111, 112, 126, 127, 138 " Soheu, 10 Daly. 11 127 " Schreyer, 63 How. 338.. 43 " Silvernail, 4"i Hun, 575 . 88 " Smethurst, 4 Super. 734 49 TABLE OF CASES CITED. XXV MatterofStouvenel,! Tuck. 241 137 Swezey, 64 How. 353.... 123 Valentine, 72 N. Y. 184 110, 139 Vilmar, 10 Daly, 15. .111, 125 Watkins, 9 Johns. 245 177, 178 WeinhaiLs, 5 Abb. N, C. 355 127 Westchester Co. 15 How. 7...: 147 Wilkinson, 36 Hun, 134 122 Woodward, 67 How. 359 126 Yates, 99 N. Y. 94 44 Youngs, 5 Abb. N. C. 346 113 Matthews v. Duryea, 4 Keyes, 525 168 Matthews B. Mayor, 14 Abb. 209 78 Matthews v. Murohison, 14 Abb. N. C. 512 u 91, 117 May V. Moore, 24 Hun, 351 6, 11 Mayor ». Erben, 24 How. 358... 75 Mayor v. Genet, 4 Hun, 658 13, 15, 17, 23, 24 Meacham «. Burke, 54 N. Y. 217 50 Meadu. Gregg, 12 Barb. 653.... 169 Mead ». Smith, 28 Hun, 639 75 Mead v. Tuckerman, 105 N. Y. 557 63, 65, 71 Mechanics Bank v. Edwards, 1 Barb. 271 ; 2 Barb. 545.. ..169, 170 Mechanics Bank v. Healy, 14 Week.. Dig. 120 120 Melvin v. Wood, 4 Abb. N. S. 438 47 Melvin D. Wood, 3 Ksyes, 533.. 44 Mercer v. Vose, 40 Super. 218.. 42, 43 Merrill v. Merrill. 11 Abb. N. S. 74 11, 34, 191, 192, 197 Merritt«.Thompson,27N.Y. 225 5 Merritt v. Vegellus, 28 Hun, 420 77 Mesereau v. Ryerss, 13 How. 300 53, 53 Mesick v. Smith, 2 How. 7 23 Metcalf V. Baker, 84 Super. 10.. 35, 57, 65, 67, 73 PAGE Metcalf i>. Baker, 57 N. Y. 662. 57 M. E. Church v. Jaques, 3 J. Ch. 77 98,99 Met. Gas Co. ». Mayor, 9*Hun, 706 75,78 Meyer s. Amidon, 45 N. Y. 169 58 Meyer ®. Bernheimer, 5 Law Bui. 46 72 Meyer v. Lent, 16 Barb. 538 103, 104, 111 Meyer v. Meyer, 7 Week. Dig. 535 195 Meyer v. Meyer, 49 How. 311... 305 Middleberger v. Middleberger, 12 Daly, 195 203 Millers. Case, Clarke Ch. 395.. 168 Miller ii. Hooker, 2 How. 171... 16 Miller v. Hull, 4 Den. 104 162 Miller v. Miller, 43 How. 125.... 300 Mills 1). Thursby, 11 How. 113.. 15, 18 Mills ». Thursby, 12 How. 417. . . 56 Miner v. Gardiner, 6 T. & C. 343 30 Mitchell v. Stewart, 3 Abb. N. S. 250 20,83 Moffatt V. Judd, 1 How. 194 34 Mohrman, v. Bush, 3 Hun, 674. 11, ,29, 34 Montgomery v. Montgomery, 3 Barb. Ch. 132 192, 197 Moore ®. Hamilton, 44 N. Y. 666 66 Moore «. Met. Bank, 55 N. Y. 41 187 Moore v. Moore, 14 Week. Dig. 255 198 Moore v. Shaw, 15 Hun, 428 164 Moores «. Lunt, 60 N. Y. 649; 1 Hun, 650 ; 4 T. & C. 154 .... 175 Morgan ». Bosworth, 1 Law Bui. 35 51 Morgan d. Stevens, 6 Abb. N. C. 356 52 Morrell ■». Morrell, 1 Barb. 318 ; 3 Barb. 236 193 Morrell v. Morrell, 17 Hun, 324 190 Morse v. Morse, 11 Barb. 510... 37 Morris v. Morange, 38 N. Y. 172 83 Morrison ». Horrocks, 103 N. Y. 675; 40 Hun, 428 14, 16 XXVI TABLE OF CASES CITED. Morrison v. Lawrence, 2 How. N. S. 72 38 Moses 1}. Banker, 30 Super. 131 * 100, 101, 102 Mott«. Lansing, 57 N. Y. 112.. 175 Mowry v. Peet, 88 N. Y. 453.. 130, 131 Moyer v. R. R. Co. 88 N. Y. 351 77 Muhlenback v. Pooler, 1 N. Y. St. Rep. 223 91 MuUin v. Kelly, 3 How. 12 27 Mulooli «. Muloch, 1 Edw.Ch. 14 193 Mundort «. Mundorf, 1 Huii, 41 11, 29, 39, 58, 59, 73, 74, 94, 95, 157 Mundorf «. Mundorf, 59 N. Y. 635 39 Mumford v. Murray, 6 J. Ch. 1. 99 Mumford n. Withey, 1 Wend. 279 72 Munn ®. Barnum, 2 Abb. 409.. 83,103 Murphy v. Winoiiester, 35 Barb. 616 9 Murray v. Barney, 34 Barb. 336 51 Musgrave ■». Sherwood, 76 N. Y. 194 114 Mut. L. I. Co. v. Brown, 47 Barb. 618 168 Mut. L. I. Co. «. Salem, 3 Hun, 117 171 Mut. L. I. Co. «. Truchtnicht, 3 Abb. N. C. 135 168 Myers v. Cronk, 45 Hun, 401.... 131 Myers v. Myers, 41 Barb. 114, 131 192,193 Nason v. Luddington, 8 Daly, 149; 56 How. 172 33,86 Nat. Bank v. Hibbard, 45 How. 280 87, 117 Nat. Ins. Co. v. Loomis, 11 Paige, 431 160 Nelson ■». Ingersoll,37How. 1.. 56,66 Nelson 1). Yates, 37 Hun, 53 175 Neugent «. Swan, 61 How. 40... 113 Newton v. ' Appleton, 4 Law Bui. 5 71 Newell V. Appleton, 2 Law Bui. 35 105 Newell D. Doty, 33 "N. Y. 83... 76, 77 Newell V. Newell, 9 Paige, 25... 205 Newland -c. West, 2 Johns. 188 11, 29, 34 Newlin v. Lyon, 49 N. Y. 661... 76 Newman ■c. Marvin, 12 Hun, 236 47 Newton «. Russell, 87N. Y. 527 116 N. Y. L. & T. Co. v. Mayer, 19 Abb. N. C. 92 171 N. Y. L. & T. Co, ■». Milner, 1 Barb. Ch. 353 158 N. Y. Co. v. Richmond, 19 Su- per. 213 76 Nichols -0. Ketcham,19 Johns. 84 108 Niles V. Battershall, 18 Abb. 161 ; 25 Super. 146 ; 27 How. 381 56 Niles «. Price, 23 How. 473 .66 Noble 'B. Cromwell, 37 How. 289 187 Nolan ». Skelly, 62 How. 102... 185 North v. Piatt. 30 Super. 207 ... 96 Noyes v. Phillips, 16 Abb. N.S. 400 77 Oakville Co. v. Double Pointed T. Co. 105 N. Y. 658 39 Oberlander ii. Spiess, 45 N. Y. 175 58 O'Brien «. Catskill Co. 32 Hun, 636 9,29 O' Dougherty ®. Remington Co. 1 N. Y. St. Rep 523, 29, 175 Olcott 11. Robinson, 21 N. Y. 150 161,163 Oliver v. Bennett, 65 N. Y. 559... 75 Olmsted ii. Loomis, 9 N. Y. 433 8 O'Niel «. N. Y. Ag. Soe. 19 Barb. 162 75 Ontario Bank v. Strong, 3 Paige, 301 1.16 Oregon Co. ii. Otis, 37 Hun, 453 47 Orr's Case, 2 Abb. 457 131 Osborne v. Betts, 8 How. 31.... 71 Osgood 11. Osgood, 2 Paige, 621 200 Otis 11. Spencer, 16 N. Y. 610.... 78 Pacific Mail Co. n. Toel, 85 N. Y- 046 115, 116 TABLE OF CASES CITED. XXVll PAGE Pacific Co. v. Luling, 7 Abb. N. S. 37 114 Packer D. French, Lalor Sup. 103 38 Paisley v. Paisley, 3 Law Bui. 6 303 Palmer v. Foley, 71 N. Y. 106.. 113 Palmer v. Palmer, 1 Paige, 376 195 Palmer v. Palmer, 13 How. 363 11, 31, 39, 58, 74, 84, 95, 96 Palmer v. Palmer, 39 How. 390 303 Palmer i>. Phoenix Co. 33 Hun 334 76, 79 Park V. Musgrave, 6 Hun, 333.. 114, 116 Pa.k 1). Park, 18 Hun. 466 303 Parker «. Baxter, 86 N. Y. 586. 58 Parker v. French, Lalor's Lupp. 103 38 Parker v. Snell, 10 Wend. 577... 18 Parkhurst v. Berdell, 87 N. Y. 145 9 Parks V. Hardey, 4 Bradt. 15.... 178 Parsons «. Belden, 9 Abb. N. C. 54 105 Parsons v. Suydam, 3 E. D. S. 376 45 Patterson v. Bloomer, 9 Abb. N. S. 37 115 Patterson v. Stettauer, 39 Super. 413 31, 34, 25 Pear.son».Fiske.3Hilt.l46.38, 41, 43 Peck II. Knickerbocker, 18 Hun, 183 164 Peck ». Lake. 3 Lans, 136 42 Peck V. N. Y. Co. 85 N. Y. 346 155 Peck V. Sherwood, 58 N. Y. 615 135, 137 Peck «. Vandemark, 99 N. Y. 39 83 Peck V. Yorks,47 Barb. 131 , 12 How. 416 43,70 Peoklord «. Peckford, 1 Paige, 274 202 Peet V. Cowenhoven, 14 Abb. 56 104 Pendleton v. Weed, 17 N. Y. 73 103 People D. Alb. Susq. Co. 5 Lans, 25 83 People 1). Albright, 14 Abb. 305 143, 144 People «. Alexander, 3 Hun, 311; 5T. &C. 397 49 People «. Baker, 19 Barb. 240... 143 People 1). Baker, 35 Barb. 105. . 79 People 11. Ball, 37 Hun, 345... 87, 131 People V. Bergen, 53 N. Y. 404.. 159 People 1). Betts, 55 N. Y. 600... 145 People V. Burton, 65 N. Y. 453.. 143, 144, 145 People «. Commissioners, 8 N. Y. 476 144 People i>. Continental Co. 15 Week. Dig. 569 63 People «. Cortelyou, 36 Barb. 164 35,143, 143 People V. D. & C. R. R. Co. 58 N. Y. 153 104,110 People B. Ferris, 37 How. 193... 142, 144 People 1). Flake, 14 How. 527... 143, 143, 144 People e. Goodwin, 5 N. Y, 568 143 People V. Harris, 63 N. Y. 391.. 143, 143, 144 People V. Jacobs, 37 Hun, 245... Ill People 11. Judges, 33 Wend. 360 144 People 11. Kniskern, 54 N. Y. 52 144 People 11. Leipzig, 53 How. 410.. 119, 133 People V. Nichols, 51 N. Y. 470 143, 144 People V. Peck, 57 How. 315... 15, 17 People 11. R. B. Co. 44 Hun, 552 110 People 11. Remington, 45 Hun, 347 94 People V. Sherman, 15 Hun, 575 145 People V. St. Louis Co. 44 Hun, 552 104, 110 People v. Strevel, 27 Hun, 218. . 143, 144 People n. Supervisors, 20 Hun, 196; 85 N. Y. 641 141, 143 People 11. Taylor, 34 Barb. 481.. 144 People V. Van Alstyne, 32 Barb. 131 143 People V. Wadsworth, 61 How. 57. 30 Perkins v, Proud, 63 Barb. 430. 107 XXVlll TABLE OF CASES CITED. Page Perry v. Moore, 2 E. D. S. 33... 33 Perry B. Perry, 3 Paige, 501.. 195, 303 Perry «. Perry, 1 Barb. Ch. 516 308 Perry v. Perry, 3 Barb. Ch. 385 199 Peterson s. Hubbell, 43 N. Y. 106 58 Peugnet®. Phelps, 48 Barb. 566 195 Peyser «. Wendt, 87 N. Y. 333. 38 Phelps V. Vlsoher, 50 N. Y. 69.. 57 Phillips 11. Gorham, 17 N. Y. 370 83 Pierce v. Voorhees, 8 How. Ill 11,39 Pierson ■». Drexel, 11 Abb. N. C. 150 53 Pirz V. Follett, 1 Civ. Proc. 185 105 Pitkin «. Cooley, 5 Hun, 48. ...66, 71 Pitt V. Davidson, 37 N. Y. 335.. 49 Pope ». Perault, 33 Hun, 468... 90 Place v. Cheeseborough, 63 N. Y. 815 15 Place V. Cheeseborough, 4 Hun, 577 3 Piatt «. Piatt, 5 Daly, 395 194 Plait «. Piatt, 105 N. Y. 488.... 187 Pollock 11. Pollock, 71 N. Y. 137 193, 194 Porter ®. Lent, 3 Abb. 115 93 Porter v. Smith, 35 Hun, 118.... 75 Potter 11. Carpenter, 71 N. Y. 74 55, 75 Pratt V. Stiles, 17 How. 311 ; 9 Abb. 150.. .11, 31, 39, 33, 53, 66, 70 President v. Bangs, 3 Paige, 570 83 Preston ii. Morrow, 66 N. Y. 453 10 Price V. Brown, 98 N. Y. 388.... 45 Price v. Powell, 3 N. Y. 333.... 80 Price V. Price, 41 Hun, 486.. 178, 179 Price 11. Price, 9 Abb. IST. S. 391 191, 193, 195 Price 11. Wilson, 67 Barb. 9 43 Pritchard-D. Hirt, 39 Hun, 878.50, 79 Pruden «. Blanchard, 86 N. Y. 356 174 Pruden ii. Tallman, 6 Civ. Proc, 860 ,.... 121 Purcell V. Puroell, 3 Edw. Ch. 194 301 Pugsleyi). Pugsley, 9 Paige, 589 198 Page Putnam n. Hubbell, 42 N. Y. 106 58 Quackenbush v. Leonard, 10 Paige, 131 85,95 Quimby v. Claflin, 77 N. Y. 370 44 Quincy i>. White, 63 N. Y. 370.. 55, 56 Quincy v. Young, 58 N. Y. 504.. 56 Quin 11. Lloyd, 30 Super. 157, 538 10, 31 Quinn n. Mayor, 2 E. D. S. 558 173 Race v. Gilbert, 103 N. Y. 398.. 189 Ramsden n. Eamsden, 38 Hun, 385 204 Randall v.. Carpenter. 88 N. Y. 293 116 Randall v. Kingsland, 53 How. 513 15 Randall ii. Van Ellert, 54 How. 863 168 Rathbone «. Clark, 9 Paige, 648 159 Rathbun ii. Ingersoll, 34 Super. 311 37 Rathbun u. Rathbun, 3 How. 139 83 Rathbun ii. Rathbim, 40 How. 338 196 Ray 11. Oliver, 6 Paige, 489 161 Raynor «. Rajmor, 31 Hun, 36.. 174 Raynor ii. Selmes, 7 Lans. 440.. 163 Read v. Lozin, 31 Hun, 386 30 Rector «. Clark, 78 N. Y. 31.148,145 Remsen n. Remsen, 2 J. Ch. 495 96, 97, 98, 99 Renouil n. Harris, 4 Super. 641 5, 11, 29, 70, 73 Reynolds v. McElhone, 20 How. 454 119 Reynolds v. Telfair, 5 Law. Bui. 31 '. 158 Richards ii. Allen, 11 Leg, Obs. 159 03 Richards ii. Richards, 2 Abb. N. C. 93 184 Richardson ■». McCreery, 1 Abb. N. C. 355 33 Richmond v. Goldsmith, 2 Law Bui. 19 118 TABLE OF CASES CITED. JXIX Page Richmond v. Hamilton, 9 Abb. 71n '. 64 Richmond v. Liverpool Co. 46 N. Y. 578 51 Riokards i>. Switzev, 3 How. 413 106 Ricketts d. Wessels, 12 AVeek.. Dig. 379 55 Riddle u. Cram, 10 Daly, 401 ... 63 Riggs 11. Pursell, 74 N. Y. 370.. 168 Riley v. Corwin, 17 Hun, 597.... 45 Robert v. Ditmas, 7 "Wend. 522 130 Robert i>. Morgan, 4 Dem. 148.. 135 Roberts v. White, 73 N. Y. 375 70, 118, 114, 115 Roberts v. White, 43 Super. 455 117 Robertson v. Robertson, 9 Daly, 44 195 Robinson ». Brennan, 90 N. Y. 208 108, 109, 160 Robinson v. Ryan, 25 N. Y. 320 156 Rochester ». Mayor, 3 How. N. S. 527 14, 25 Roe v. Boyle, 81 N. Y. 305.. 130,133 Rogers ». Durant, 2 T. & C. 676 101 Rogers d. Ivers, 38 Hun, 434.168,169 Rogers ■». Runyon, 9 How. 348. 144 Rogers v. Veronia, 14 Super. 417 45 Ronalds v. Mechanics Bank, 37 Super. 208 18 Roosa i>. Saugerties Co. 12 How. 297 67, 68 Rose V. Mayor, 33 How. 164 18 Rose V. Post, 56 N. Y. 608 116 Rosevelt v. Thurman, 1 J. Ch. 220 ; 8 Ross «. Beeeher, 2 How. 157.... 23 Ross V. Coombes, 37 Super. 289 14, 15, 36 Ross ■». Mayor, 33 How. 164 18 Ross p. Mayor, 3 Abb. N. S. 266 15 Rowe'll V. Giles, 53 How. 244.... 19 Ruckman v. Ruokmau, 58 How. 378 303, 204 Russell «. Austin, 1 Paige, 193.. 181 Russell «. Duflon, 4 Lans. 399. . 75 Russell 1). Gibbs. 5 Cow. 390.107,108 Russell '"■ Yates, 17 Johns. 461. 5 Page Rust V. Hauselt, 46 Super. 23; 8 Abb. K 0. 148 62, 88, 90 Rutter ex parte, 3 Hill, 464 40 Ryan ,». Atlantic Co. 50 How. 321 16, 24 Ryan v. McConnell, 3 Super. 709 93 Saokett v. N. Y. Co. 21 Super. 288 56 Sage D. Mosher, 17 How. 867.... 34, 35, 86, 95 Sails 11. Butler, 27 How. 133 81 Salisbury ii. Scott, 6 Johns. 339 24 Salter v. Malcolm, 8 Super. 596.50,60 Saltus «. Kip, 2 Abb, 382.. ..106, 107 Samble v. Mechanics Co. 1 Su- per. 560 16 Samuels «. Bryant, 14 Abb. N. S. 443 106 Saunders n. Saunders, 3 Edw. Ch. 491 200 Sands «. Bride, 29 How. 305.... 149 Sands n. Kimback, 27 N.Y. 147, 148, 149, 150 Sands v. Tillinghast, 24 How. 435 149 Sanford v. Carr, 2 Abb. 462 131 Savage ii. Sherman, 87 N. Y. 377 91 Schafer v. Reiley, 50 N. Y. 61... 169 Schormerhoru ii. Devlin, 1 C. R. 28 42 Schermerhorn v. Van Alen, 13 How. 83 8,9 Schermerhorn «. Wood, 4 Daly, 158 17, 66 Schloemer ii. Schloemer, 49 N. Y. 83 71, 83, 194 Schneider v. Altman, 8 Civ. Proc. 343 133 Schreyer n. Holborrow, 36 Hun, 468 132 Schroeter ®. Schroeter, 23 Hun, 330 193, 195,196, 197 Schuyler v. Smith, 51 N. Y. 309 78 Schwinger ■». Raj'mond, 83 N. Y. 193 78 Scott v. Delahunt, 65 N. Y. 138 17.i Scott !). Guernsey, 60 Barb. 163 184 XXX TABLE OF CASES CITED. Page Scott t). Williams, 33 How. 393 103 Soranton v. Baxter, 5 Super. 660 74 Seudder i). Snow, 39 How. 95.. 10, 23 Seoor 1). Law, 23 Super. 163.. .46, 47 Security Co. «. Martin, 15 Abb. 479 155,156 Selkirk v. Ascough, 16 Alb. L. J. 151 156 Selover ». Coe, 63 N. Y. 438.... 130 Sewall V. De Forest, 3 How. 176 35 Sermont ii. Batjer, 49 Barb. 363 56, 57 Settle ». Van Evrea, 49 N. Y. 280 6 Sharp ®. Freeman, 45 N. Y. 803 43 Sharp 11. Mayor, 31 Barb. 578.8, 9, 10 Sharp V. Mayor, 18 How. 213.. 13, 16 Shaw V. Ayrs, 4 Cow. 53 31, 34 Shearman d. Justice, 22 How. 241 66 Sheahy v. Tomlinson, 1 Week. Dig. 24 172 Sheldon i>. Soper, 14 Johns. 352 108 Sheldon «. Wood, 14H0W.18... 14, 76 Sheldon v. Wood, 15 Super. 367 14, 106 Shepherd i). Shepherd, 1 Hun, 340; 58 N. Y. 644 303 Sherman 1). Hudson River Co. 64 N. Y. 354 57 Sherwood -e. Dolen, 14 Hun, 191 130 Short v. Barry, 3 Lans. 143 37 Shultz «. Whitney, 9 Abb. 71 ; 17 How. 471 35, 64, 65, 70, 71 Sickles i>. Fort, 13 Wend. 199... 41 Sickles V. Hanley, 4 Abb. N. C. 331 118 Sidenberg «. Ely, 90 N. Y. 357. 156 Siegel 11. Held, 36 How. 506 37 Silmser d. Redfleld, 19 Wend. 31 13, 15, 19 Simmons ii. Simmons, 35 Super. 713 203 Sinclair ®. Fitch, 3 E. D. S. 677 173 Sinclair «. Neill, 1 Hun, 80 45,46 Slocum V. Watkins, 1 Den. 631 41 Smethurst, Matter of, 4 Super. 734 49 Page Smith V. Brown, 3 How. 9 16, 18 Smith V. Coe, 39 N. Y. 666 55 Smith 11. Countrymaa, 30 N. Y. 655 46 Smith n. Devlin, 33 N. Y. 363... 55 Smith n. Dodd, 3 E. D. S. 348.30, 31 Smith V. Glens Falls Co. 63 N. Y. 85 53 Smith V. Kobbe, 59 Barb. 289... 43 Smith 11. Piatt, 96 N. Y. 635.... 76 Smith V. Rathbun, 13 Hun, 47.. 41, 45, 46 Smith v. Rathbun, 75 N. Y. 123 46 Smith V. Rowley. 66 Barb. 503.. 57 Smith V. Smith, 4 Paige, 433.... 193 Smith V. Smith, 6 Lans. 313 173 Smith V. Smith, 4 Law Bui. 57. 195 Smith V. Velie, 50 N. Y. 106.... 133 Snyder v. Berger, 3 E. D. S. 335 73 Snyder v. Snyder, 3 Barb. 631. . 196 Snyder v. Snyder, 96 N. Y. 88. . 139 Somerville v. Crook, 9 Hun, 664 133 Solomon v. Solomon, 28 How. 318 1.300, 203 Southard n. Lavelle, 4 Law Bui. 30 172 Spahn 11. Spahn, 12 Abb. N. C. 169 301 Spence v. Chambers, 39 Hun, 193 75, 78 Spooner v. Lefevre, 2 T. & C. 666 55,99 Stafford s. Ambs, 8 Abb. N. C. 337 9, 103,104 State Bank v. Hibbard, 45 How. 280 158 Stebbins v. Brown, 65 Barb. 271 68 Stebbins i>. Cowles, 66 How. 38 31 Stebbins v. Cowles, 30 Hun, 533 17 Steinle n. Bell, 13 Abb. X; S. I'l 161, 163 Stelle 11. Palmer, 7 Abb. 181.... 103 Stephens v. Strong, 8 How. 339 34, 86, 95, 197 Stevens r. Bank, 31 Barb. 290.. 171 Stevens ii. Mayor, 84 N. Y. 296 56 Stevens v. Veriane, 2 Lans. 90.. 53, 153 TABLE OF CASES CITED. XXXI Page Stevenson «. Buxton, 37 Barb. 15 > 14 Stewart s. Bogart, 3 Law Bul.94 157 Stewart «. Drake, 46 N. Y. 449 37 Stewart v. Gardiner, 3 How. 156 82 Stewart v. O'Donnell, 3 Dem. 17 139 Stewart » Smith, 1 Keyes, 59 ; below 39 Barb. 167 177, 178 Stimson v. Wrigley, 86 N. Y. 333 108 Story V. Brown, 4 Paige, 113. .96, 97 Stoughton V. Lj nch, 3 J. Ch. 309 99 Stouvenel v. Stevens, 3 Daly, 319 9 Strauss V. Hellman, 58 How. 377 165 Streat v. Rothschild, 12 Abb. N. C. 383 20 Strittmacher v. Salina Co. 34 How. 74 77 Strong i). Strong, 1 Abb. N. S. 358 300 Stubbs «. Ripley, 39 Hun, 630. . 86, 103, 104, 111 Stuyvesant «. Hall, 2 Barb. Ch. 151 158 Sudam v. Swart, 30 Johns. 476 33 Sudlow V. Knox, 7 Abb. N. S. 411 48, 49, 97, 98 Sullivan ■». Sullivan, 41 Super. 519; 52 How. 453.. .11, 32,84, 191, 192, 193, 195, 198 Sutherland v. Rose, 47 Barb. 144 60, 76 Sutton ». Davis, 6 Hun, 337 49 Swarthout ». Curtis, 4 N. Y. 415 157 Sweet ». Jacobs, 6 Paige, 355... 167 Swift V. Wells, 3 How. 79 16 Taaks v. Schmidt, 19 How. 413 55, 114 Talcott V. Rosenberg, 3 Daly, 203 79,81 Tallmadge v. Whitman, 11 Hun, 367 75 Tallman v. Farley, 1 Barb. 380. 170 Tammessen v. Clause, 67 Barb. 430 103, 104 Tator «. Adams, 58 How. 355 ; 20 Hun, 131 168, 169, 172 Taylor v. Baldwin, 10 Barb. 626 176 Page Taylor v. Bentley, 3 Red£. 34... 133, 175 Taylor v. Post, 30 Hun, 446 175 Tearle v. Tearle, Daily Reg. July 35, '83 .• 197 Terry », McNeil, 58 Barb. 241. .30, 42 Thiesselin «. Rossett, 3 Abb. N. S. 54 60, 62 Thomas v. Kelsey, 30 Barb. 268 170 Thomas t). Reab, 6 Wend. 503.13, 15 Thomasson i). Peterson, 23 How. 98 46 Thompson v. Finn, 11 Week. Dig. 183 106 Thompson jj. Finn, 9 Daly, 379 14 Thompson v. Seiner, 40 How. 346 18 Thurber v. Chambers, 4 Hun, 731 90, 93, 183 Tiffany c. Lord, 40 How. 481.... 5 Tilman v. Keane, 1 Abb. N. S. 33 53 Tilney v. Clendenning, 1 Dem- 313 130 Titus V. Cortelyou, 1 Barb. 444 97 Tomlinson i). Mayor, 44 N. Y. 601 78,80 Tompkins d. Lee, 59 N. Y. 662. 78 Tooker v. Rinaldo, 11 Hun, 154 17, 30, 173 Townsend v. Glens Falls Co. 33 Super. 130; 10 Abb. N. S. 277 9, 10, 54, 69, 79, 81 Townsend*. Hendricks, 40 How. 143 3, 12, 15, 19, 26, 30 Tracy v. Stevens, 61 How. 365.. 16 Tremaine v. Rider, 13 How. 148 43,76 Trimble v. Stilwell, 4 E. D. S. 513 38,43 Troxell ®. Haynes, 5 Daly, 389. 116 Trufant v. Merrill, 37 How. 531 58, 59, 66 Tugwell V. Bussing, 3 Hun, 160 108 Turner v. Taylor, 3 Daly, 278... 19, 30, 73 Turney v. Turney, 4 Edw. Ch. 566 190 XXXll TABLE OF CASES CITED. Page Tweed v. Davis, 1 Hun, 353 80 Tyler v. Willis, 33 Barb. 327... 76, 78 Ubsdell V. Root, 1 Hilt. 173 81 Underhill v. Newburger, 4 Redf. 499 130 Underwood v. Sutoliffe, 10 Hun, 453 121 Union Bank v. Mott, 18 How. 506 44,45,48 Union Bank v. Mott, 39 Barb. 180 58 Union Bank «. Mott, 10 Abb. 373 46 Union Co. i). Byington, 1 Hun, 44 77 Union T. Co. v. M. & P. J. Co. 63N. Y. 811 170 U. S. T. Co. V. Empire City Bank, 18 N. Y. 199 151 Untermeyer v. Bernhauer, 105 N.Y. 531 : 14,16,88 Upson V. Badeau, 8 Bradf. 13... 187 Vanderoook «. Cohoes Co. 5 Hun, 641 158 Vanderheyden v. Vanderhey- den, 2 Paige, 387 89 Vanderlip v. Keyser, 68 N. Y. 443 50,79 Vandevoort ii. Gould, 36 N. Y. 639 182 Valentine v. McCue, 36 Hun, 456 163 Valentine ». Valentine, 4 Redf. 265 136, 137 Van Name «. Van Name, 23 How. 247 181 Van Ness «. Bush, 23 How. 481 44 Van Orden ■». Tilden, 13 Daly, 396 17 Van Renselaer ■». Pay, 18 Wend. 509 41 Van Renselaer v. Jewett, 6 Hill, 373 13, 15,16 Van Slyok i>. Hyatt, 46 N. Y. 259 79 Van Slyok v. Van Loan, 36 Hun, 344 158 Page Van Steenburgh v. Hoffman, 6 How. 493 •' 56 Van Wyck ». Bradley, 3 Code Rep. 157 120 Van Zandt s. Cobb, 10 How. 348 94 Veltman v. Thompson, 3 N. Y. 438 175 Verplanck «. Kendall, 45 Super. 535 13 Viele 1). Troy Co. 30 N. Y. 184. 79 Vilmar v. Schall, 61 N. Y. 564..15, 17 Voorhis ». Voorhis, 50 Barb. 119 57, 66, 79 Vose V. Cockroft, 44 N. Y. 415. 174 WaddellD. Cook, 2 Hill, 47 108 Wagoner «. Finch, 65 Barb. 493 48 Walbridge «. James, 16 Hun, 8 166, 189 Wallace «. Berdell, 101 N. Y. 13; 3 N. E. Rep. 769; 3 East. Rep. 827 178 Wallace v. Feely, 61 How. 225. 158 Walsh «. Adams, 3 Den. 125 ... 108 Walker ». Walker, 3 Abb. N. C. 12 '. 186, 187 Ward V. Craig, 87 N. Y 550 76, 77, 79 Wardi). James, 8 Hun, 526.. 163, 163 Ward fl. Kilpatriok, 1 Law Bui. 81 173 Waring i>. Loomis, 4 Barb. 484. 108 Warner v. Kenny, 8 How. 323.. 107 Warren d. Warren, 22 How. 142 79 Waterbury ■». Bouker, 10 Hun, 262 114 Waterman i). Waterman, 87 How. 36 190, 191 Watrous v. Elmendorf , 55 How. 461 173 Watson B. Gardiner, 50 N. Y. 671 30,71 Weaver i\ Toogood, 1 Barb. 238 108 Webb«. Buckalew, 82N. Y. 555 83 Wellers. Weller,4Hun, 195.. 37, 131 Welsh V. Darragh, 53 N. Y. 590 14, 15, 16, 17, 18, 25, 80 TABLE OF CASES CITED. XXXIU Page Weseman v. Wingrove, 85 N. Y. 353 164,187, 188 Westgate o. Handlin, 7 How. 372 163 Wetter «. Sohlieper, 7 Abb. 92.. 34,35 Whalen ». Supervisors, 6 How. 378 10, 81, 33 "Wheeler i>. Billings, 38 N. Y. 363 76, 77 Wheeler v. Falconer, 30 Super. 45 4, 10, 12, 31, 33, 33, 34, 94 Wheeler v. Maitlaud, 13 How. 35 84 Whispell «. Whispell, 4 Barb. 217 303, 304 Whitbeck v. Rowe, 35 How. 403 158 White v. Coulter, 1 Hun, 357 ; 8T. &C. 608; 59 N. Y. 639.. 154, 157 White «. Smith, 1 Lans. 469.9, 38, 40 White V. Smith, 46 N. Y. 418.. 38, 41 White «. Story, 38 How. 173.... 139 White «. Story, 2 Hill, 543 174 Whitney «. Whitney, 33 How. 175 199, 200 Whittaker v. Desfosse, 20 Su- per. 678 15, 19 Wickham v. Frazee, 13 Hun, 431 14, 19, 148 Wiggin D. Gans, 6 Super. 646... 59; 84, 95, 96, 98 Wiggins V. Howard, 23 Hun,136 188 Wightman t>. Wightman. 4 J. Ch. 348 191 Wilcox v. Smith, 36 Barb. 316.. 98 Wiley «. Brigham, 16 Hun, 106 45,48 Wilkins v. Buck, 13 Hun, 124... 50 Williams «. Allen, 3 Hun, 377 ; 4 T. & C. 673 ; 48 How. 357 15, 18, 30, 31 Williams v. Carroll, 2 Hilt. 438 130 Williams v. Cox, 3 Edw. Ch. 178 179 Williams ». Hays, 30 N. Y. 58.. 38 Williamson v. Williamson, 1 J. Ch. 488 193, 195 Page Wilson ». Knapp, 43 Super. 75. 51, £5 Wilson V. Lawrence, 83 N. Y. 409 174 Wiltsie V. Eadie, 4 Abb. N. S. 393 55 Winans v. Winans, 54 Super. 541 5 Witbeok v. Waine, 8 How. 438 79,81 Withaus «. Schack, 88 Hun, 560 182 Woloott ■». Sohenck, 33 How. 385 158 Wolcott 11. Weaver, 3 How. 159 154, 155, 156 Wood V. Crowner, 4 Hill, 548... 23 Wood «. Hope, 3 Abb. N. C. 186 13 Wood V. Morehouse, 45 N. Y. 368 107, 163 Wood J). Seely, 33 N. Y. 105.... 178 Wood V. Swift, 81 N. Y. 31 88 Woodin v. Bagley, 13 Wend. 453 180 Woodruff «. Dickie, 38 Super. 619 45,48 Woodruff V. Hurson, 33 Barb. 557 44,45,46 Woodruff «. Woodruff, 17 Abb. 165 187 Wright v. Nostrand, 94 N. Y. 31 119,131 Wright V. Saunders, 65 Barb. 314: 38 How. 395 55,58 Wright «. Sanders, 38 How. 395 55 Yale v. Gwinits, 4 How. 353.. 37, 67 Young v. Campbell, 61 How. 40 118 Youngs. Cuddy, 28 Hun, 249... 132 Zabriskie «. Smith, 11 N. Y. 480 81 Zadok v. Zadok, Daily Reg. Ju- ly 14, '86 193, 193, 195, 198 Zorkoroski «. Zorkoroski, 36 Super. 618 196, 198 SECTIONS OF THE CODE CITED. Page Section 8 197 14 87 46 8 " 90 7 503 59 504 59 633 118, 115, 117 " 624 115 635 117 721 33, 86 " 734 76 737 39, 59 770 195 783 76 " 807 83 827 83 831 191, 189 " 842 33 " 852 87 853 81, 87 854 87, 111 855 87,98 856 87,98, 111 873 84, 104 876 105 879 83 880 105, 106 885 84,100,101,102 " 886 103 993 52, 75 " 994 75 " 995 75 997 77,78 998 77, 80 " 1001 69,77 " 1008 , 5 " 1009 5 " 1010 38 Page Section 1011. .4, 5, 6,7,9, 10, 38, 29, 152, 172, 184, 190 1013.4,153,172,184,190, 192, 194, 200 1013.3, 12, 18,20,21,28, 39, 83, 93, 152,153, 176 1014 82, 153 1015....83,93,94,103,196,200 1016 33,86,95,111,193 1017 41,87, 96, 193 1018..34,35,40,41,44,48, 50, 53, 137, 153 1019 60,90, 156 1030 57 1022....54,58,59,138,146,192 1033 50 1024 7,8,11,39,84,205 1025 6, 10, 28, 39 1036 34,85,55,81 1315 106 1221 153, 193 1223 153 1226 153 1228 73,74, 184 1329 147 1330 74 1331 74,83 1333., 1343.. 1343., 1244.. 1346.. 1349.. 1851.. 1353.. 1384.. 1438.. 1439.. ... 91 ... 160 ... 160 ... 163 ... 77 ... 77 .30, 74 ... 79 ... 109 ... 108 ... 107 XXXVl SECTIONS OF THE CODE CITED. PAGE Sbotion1434 161 " 1435 161 " 1437 158 " 1544 184 " 1545 184, 185 " 1560 187 " 1561 185, 186, 187 " 1563 186 " 1576 189 " 1600 180, 182 " 1601 181 " 1603 ' 181 " 1603 181 " 1604 181 " 1607 176 " 1608 176, 177 " 1609 177, 178, 179 " 1610 180 " 1611 180 " 1613 180 " 1618 182 " 1619 182 " 1631 183 " 1633 183 " 1659 38 " 1676 160 " 1678 158,161 " 1679 160 " 1736 60 " 1727 60 " 1739 107 " 1743 205 " 1751 199 " 1753 205 " 1753 193, 805 " 1756 193 " 1757 193, 198 " 1758 198 " 1759 195, 199 " 1765 303, 304 " 1766 199 " 1769 199 PASE Section 1833 130 " 1878 83 " 1898 60 " 3083 110 " 3369 50 " 3305 141 " 2306 141 " 3308 141 " 2354 110, 111, 139, 140 " 3423 147 " 2426 147 " 2427 147 " 2438 148 " 3433 118 •' 3434 110,111 " 2443 118 " 2443 118 " 3444 118, 119 " 3445 118, 119 " 3459 119 " 3460 130 " 2511 133 " 2533...; 135 " 3539 134 " 2540 134 " 2546.. 110, 111, 133, 134, 135, 137 " 3706 184 " 2707 134 " 3710 134 " 2730 135 " 2734 98 " 2735 136, 137 " 3739 139 " 3810 135 " 3348 73 " 3353 71 " 3296 63 " 3397 165, 188 " 3399 180 " 3307 109, 165 " 3308 165 EULES OF COURT CITED. XXXTll RULES OF COURT CITED. EULE 3 74 " 30.4, 50, 87, 88, 91, 113, 117, 131,138,140,146,156,187, 193, 194, 198, 301 " 31 83 " 33 77 " 37 300 " 38 33 " 56 140 " 60 154 " 61 154,157, 161, 164 PAGE Rtjlb 63 161 " 64 166, 167 " 66 185 " 73,187,188,190,193,197,198,304 " 74 198, 305 " 75 191 " 76 191, 198 " 77 193,198, 194, 197 " 80 6, 7, 84 " 85 84,94,136,136,138 ASSIGNMENT RULES CITED. RrLE 33 134,135 " 35 135 " 36 135 Rtjle 37 136 " 28 136 " 39 137 EULES OF SUEEOGATES COUET CITED. Rile 7 135,136, 137, 138 | Rule 8 138 OLD CHANCERY EULES CITED. EuLElOO 85, 86, 95, 136 " 101 85,95 " 102 96, 97 " 103 97 " 104 98 Rule 105 98 " 107 89, 95, 96, 98, 135 " 108 100 " 136 166, 167 " 178 186 THE LAW OF REFEREES. PART I. CHAPTEE I. INTRODUCTION. References were unknown to the common law. Tlie nearest approach thereto was the old action of account, in which, if plaintiff had judgment that an accounting should be had, auditors were appointed to take and state the ac- count. This form of action was limited in its scope, was one of the most dilatory and expensive that ever existed, and was rarely resorted to.^ The germ of our present sys- tem may, perhaps, be found in the practice that obtained here as early as 1654 under the Dutch governors. At that early date, if the cause before the court was intricate, or the truth difficult to ascertain, it was almost always referred to arbitrators who were instructed to bring about a recon- ciliation if possible. Nor was this practice confined to cases of dispute about accounts, or to differences growing out of contracts, but extended to nearly every kind of action that came before the court. The arbitrators were selected by the litigants, or appointed by the court.^ This practice continued to a greater or less extent under the English governors until 1683, when the Charter of Liber- ties provided that all trials should be by the verdict of twelve men.^ Trial by jury of actions involving long and intricate accounts proved unsatisfactory and burdensome, and in 1768 the colonial legislature passed the following 1 Sup'm. Ct. 1843, MoMurray b. ^ Oom. PI. 1874, Magown v. Siu- Rawson, 3 Hill 59. ^.j^j 5 p^^j g3_ 2 Introduction to 1 E. D. Smith's Com. PI. Rep. p. XXIX. 2 LAW OF EEFEREES. act : " "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 assumsit, whereby the business of unraveling long and intricate ac- counts, most proper for the deliberate examination of audit- ors, is now cast u]pon jurors, who at the bar, are now dis- advantageously circumstanced for such services, and this burden upon jurors is greatly increased since the laws made for permitting discounts in support of a plea of payment, so that by the change of the law and the practice above mentioned, the suits of merchants and others upon long ac- counts are exposed to erroneous decisions, and jurors per- plexed and rendered more liable to attaints ; and by the vast time necessarily consumed in such trials, other causes are delayed, and the general course of justice greatly ob- structed. Be it therefore enacted so 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," etc.^ This act expired by its own limitation Jan. 1, 1771, but was re-enacted Feb. 16, 1771,^ to continue in force until Feb. 1, 1780.3 By an act passed Feb. 26, 1772, the powers thus conferred on the Supreme Court were ex- tended to the Courts of Common Pleas and to the Mayors' Courts of the cities of New York and Albany.* Such was the state of legislation on this subject at the time of the adop- tion of the State Constitution in 1777. That instrument provided that " the trial by jury in all cases in which it has been heretofore used, shall remain inviolate for ever." ^ The constitution of 1822 contains the same provision ;8 so does 1 Van Sohaiok's Laws, N. Y., Vol. * Van Schaiok's Laws, N. Y., Vol. 3, p. 517. 2, p. 643. 2 Van Shaick's Laws, N. Y., Vol. * Constitution of 1777 Art. 7, § 3, p. 60. 3. 3 Van Schaiok's Laws, N. Y., Vol. ^ Constitution of 1823 Act 7 S 2, p. 607. 2. INTEOD'UCTION. d that of 1846.^ The colonial act of 1771 was, by the consti- tution, made the law of this State,^ consequently no citizen thereof or suitor therein at the time of the adoption of the Constitution had the right of trial by jury of a common law action on contract involving a long account.^ The act of 1771 expired by its own limitation Feb. 1, 1780, and from that time until Feb. 27, 1788, no law authorizing references could be found in our statutes. On the last named date the act of 1771 was revived, and the authority to order references extended to all courts of record, and also to causes wherein executors and administrators were parties.* The statute of 1801 ^ re-enacts with less verbiage the act of 1788, and this was followed in turn by the act of 1813.^ Subsequent statutes are in substance re-enactments of the law of 1771. In some of these it was expressly declared that the action must be on contract," in others this provis- ion was omitted,^ but the right to refer actions on contract involving a long account is given by all. It will be ob- served that the form of the statute is always permissive, never mandatory.^ A reference, even in actions involving a long account, is not, and never has, since the adop- tion of the constitution, been a matter of right, but always of discretion ; '" the right of trial by jury only as it existed in 1777 has been preserved. No statute subse- quently passed can impair it,^^ and a compulsory reference of issues can be ordered now only where it could have been ordered before the code.^'' 1 Constitution of 1846, Art. 1, § 2. ^ Van Schaick's Laws, N. T., Vol. 2Ct. App. 1870, Townsend v. 3, p. 517; L. 1845, Ch. 163, §3; Hendricks, 40 How. 143. Code Civ. Proc. § 1018. 3Ct. App. 1870, Townsend v. "N. Y. Super. 1882, Day s, Jam- Hendrioks, 40 How. 143. ison, 49 Super. 373, 1877, Martin ^Greenleaf's Laws of New York, «. Windsor Co., 70 N. Y. 101. Vol. 2, p. 103, § 2. "Ct. App. 1870, Townsend v. 5 Kent & Radcliffs Laws, N. Y., Hendricks, 40 How. 143. Vol. 1, p. 347, § 2. ^-Ct App. 1870, Townsend v. SRevisedLaws, N. Y.,p. 516, §3. Hendricks, 40 How, 143 ; Sup' m 7 L- 1845, ch. 163, § 3. Ct. Sp. T. 1859, Cameron v. Free- 8 Code, Civ. Proc. § 1018 ; Re- man, 18 How. 310 ; Sup'm Ct. 1875, vised Laws, N. Y., Vol. 1, p. 356. Place v. Cheeseborough, 4 Hun, 577. 4 LAW OF BfiFEKEES, CHAPTEE II. EEFEEENCE OF ISSUES BY CONSENT. Section 1.— What Action may be Referred by Consent. Section 3. — The Consent to Refer. Section 3. — Who may be Referee. Section 4. — Order in Reference by Consent. § 1. What Actions may be Referred by Consent. — Any action or any of the issues in an action, except one to annul a mar- riage, or for a divorce, or a separation, or an action against a corporation to obtain a dissolution thereof and the ap- pointment of a receiver or the distribution of its property, unless it is brought by the attorney-general, or an action wherein a defendant to be affected by the result is an infant, must be referred upon the written consent of the attorneys, duly filed. An action to annul a marriage, or for a divorce or a separation can be referred only by consent.'' The court may, in its discretion, grant or refuse such reference, and if granted the court must designate the referee. ^ Actions in equity as well as at law may be referred by consent of the parties,^ so may an issue of law as well as of fact,* but a reference of the issues cannot be had until the cause is ready for trial as to all the defendants," nor of issues of law and fact while a demurrer is pending.^ iCode Civ. Proc, §§ 1011, 1012. ^Code Civ. Proc, §§ 1011, 1019; .2 Code Civ. Proc, §§ 1011, 1012; 1868, CofBn ». Reynolds, 37 N. T., Rule 73. 640; 1873, Schuyler v. Smith, 51 3 Code Civ. Proc, § 1011 ; Sup'm N. Y. 309; Rule 30. Ct. 1879, Bell b. Vernoy, 18 Hun, 5 Sup'm Ct. 1860, Hawkins ®. Av- 135; 1875, Maoy n. Nelson, 63 N. Y. , ery, 32 Barb. 551 ; N. Y. Super. 1867, 638; Sup'm Ct. 1868, Franklin i). Wheeler v. Falconer, 30 Super. 45; Chapin, 53 Barb,, 488; 35 How., Sup'm Ct. 1846, Butcher d. Wilgus, 155; N. Y. Surr. 1885, Benedicts. 2 Hun. 180; N. Y. Super. 1856, Cooper, 3 Dem, 363; 2 How. N. S., Goodyear v. Brooks, 37 Super. 683. 38; Sup'm Ct. 1875, Thurber B.Cham- sSup'm Ct. 1824, Jansen v. Tap- bers, 4 Hun, 721. pen, 3 Cow. 339. KEFEKENCE OF ISSUES BY CONSENT. 5 § 2. The Consent to Refer. — ^Tlie consent to refer should be in writing, should contain the title of the cause, and be signed by the attorneys,^ but a written one, made but not signed, when acted upon by the court, has been held suffi- cient,^ so has one signed by counsel,^ or oral consent in open court, the entry thereof in the minutes by the clerk being sufficient to satisfy the statute.* The consent once given cannot thereafter be questioned,^ nor will it be set aside by the court on the application of a party on the ground that he is unable to pay the necessary fees,^ and waives the objection that the cause is not referable.'^ It should state precisely what is referred,^ and the better prac- tice is to make it unconditional. A stipulation to refer the cause to three referees to hear and determine on legal and equitable principles, is an arbitration, not a reference,^ so is one to submit to the decision of the referee absolutely without regard to the evidence,^" and works a discontinuance of the action,^^ even though the submission be void ; ^^ but the parties may, by their acts, give a different construction iCode Civ. Proc. §§ 1009, 1011. Percy, 5 Wend, 535; Sup'm. Ct. 2 Sup'm. Ct. Sp. T. 1868, Water- 1820, Harris i). Bradshaw, 18 Johns, man v. Waterman, 37 How. 36; 26; Sup'm. Ct. 1840, Lee b. Till ot- Sup'm. Ct. 1852, Leaycraft v. Fow- son, 24 Wend. 337. ler, 7 How. 259. 8 n. y. Super. 1849, Renouil ». 3 Sup'm. Ct. 1870, Tiffany v. Lord, Harris, 4 Super. 647. 40 How. 481. 9 ]sr. Y. Super. 1849, Blunt v. Whit- * Sup'm. Ct. 1879, Bell v. Vernoy, ^^^^ g guper. 4. 18 Hun, 125 ; 1875 Maoy «. Nelson, ^^ ^^^^^^ ^_ ^ ^g j^_ Y. 63 N. Y. 638; Sup'm. Ct. 1868, ^^ i863, Merritt .. Thompson, 37 Buoklin v. Chapin, 53 Barb. 488; „ „ „„^ Sup'm. Ct. 1853, Leaycraft D. Fow- '„, ' .„.„ ,,, ^ wu-*. ler, 7 How. 359; Sup'm. Ct. Sp. T. "N.Y, Super. 1849 Blunt.. Whit- 1851, Keator .. Ulster Co., 7 How. W, 5 S^per. 4; 1878 Claflm . 41: W. Y. Surr. 1885, Benedict .. Meyer, 75 N. Y. 360; 1863 Merntt Cooper, 3 Dem. 362; 3 How. N. S. «• Thompson, 27 N^ Y 225; Sup'm. 38; Sup'm. Ct. 1840, Lee .. Tillot- Ct. 1839, Larking. Robbms, 3 Wend, soi, 24 Wend. 337. 505; Sup'm. Ct^ 1848, Jordan . Hy- 5 Sup'm. Ct. 1835, Greene ..Patch- att, 3 Barb. 375; Sup'n. Ct. 1879, en, 15 Wend. 293; 1820, Russell v. Keep v. Keep, 17 Hun, 153. Yates, 17 Johns, 461. i^ gup'm. Ct. 1879, Keep v. Keep, 6N. Y. Super. 1887, Winans v. 17 Hun, 153; Sup'm. Ct. 1848, Jor- Winans, 54 Super. 542. dan v. Hyatt, 3 Barb. 375. 'Sup'm. Ct. 1830, Armstrong v. b LAW OF EEFEEEES. to the consent and the order entered thereon.^ A stipu- lation referring the cause to three referees named, prescrib- ing the evidence to be received, limiting the time of making the report, providing that if the report shall not be made within the time named the authority of two of said referees who are specified shall cease, and that the third shall pro- ceed and complete the trial, that judgment may be entered on his report, and waiving the right to appeal from the judgment, is not an arbitration but a reference, and the action continues in court.* If the parties desire a referee of their own selection the stipulation should name him, and should further provide that should the reference be re- fused by the one so named, or should the judgment be reversed on appeal, the parties should name the substitute,^ should this power not be reserved the court must appoint another,* the word must is imperative;^ any number not exceeding five may be selected.^ There is no provision of the code requiring that a sole referee, or any one of two or more appointed by consent shall be members of the bar, but the court rules provide that no one shall be appointed who is the clerk or partner of the attorney or counsel of the party in whose behalf 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 counsel.'' The stipulation should state precisely what is to be referred. A reference of all the issues embraces all subordinate matters in the order, and is conclusive on appeal therefrom.^ § 3. Who may be Referee. — No judge of the court of ap- peals, justice of the supreme court, or judge of a court of record in the cities of New York, Brooklyn or Buffalo, can act as referee f the prohibition cannot be waived by the 11878, Claflin «. Meyer, 75 N. Y. 24 Hun, 351; Sup'm. Ct. 1886, Car- 260. ter v. "Wallace, 3 How. N. S. 350. 2 N. Y. Super. 1866, Healy b. » Code Civ. Proo. § 1025. Oilman, 29 Super. 479. ' Rule 80. 8 Code Civ. Proc. § 1011. « Sup'm. Ct. 1886, Jones v. Jones, " Code Civ. Proo. § 1011. 1 N. Y. St. Rep. 759. 6 Sup'm. Ct. 1881, May v. Moore, "Constitution olN. Y.,Art.VI,§ 21. EEFERENCE OP ISSUES BY CONSENT. I parties, but it does not apply to a commissioner of appeals.^ Where a referee after beginning the trial was appointed jus- tice of the supreme court, and while in the performance of his duties as such justice made his report as referee, the re- port, and all proceedings thereon, were set aside, but the term of the justice having expired, leave was given to either party to proceed with the reference as it stood prior to the day when the referee took the oath as justice of the su- preme court.^ No one holding the office of clerk, deputy clerk, special deputy clerk, or assistant in the clerk's office of a court of record, or of the surrogate's court within either of the counties of New York or Kings can be ap- pointed except by the written consent of all the parties to the action or special proceeding, other than parties in de- fault for failure to appear, or to plead ; ^ the stenographer of the New York surrogate's court is not within this prohibi- tion.* No judge can be appointed a referee in an action brought in the court of which he is a judge, except by writ- ten consent of the parties, and in such case he can receive no compensation as referee,^ nor can any one be appointed who is the partner or clerk of the attorney, or counsel of the party in whose behalf 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 counsel.^ 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 distri- bution of its property, unless it is brought by the attorney- general ; or an action wherein a defendant to be affected by the result of the trial is an infant, no person save an attor- ney of the court in good standing can be appointed a referee for any purpose in any action or proceeding.''' The referee must be free from all just objection, and except in an action to annul a marriage, or for a divorce or a separation one to 1 1872, Settle «. Van Evrea, 49 N. ■*N. Y. Surr. 1885, Benedict v. Y. 280. Cooper, 3 Dem. 362; 3 How. N. S.38. 2 Sup'm. Ct. 1880, Countryman v. ^ Code Civ. Proc. § 1034. Norton, 31 Hun, 17. « Rule 80. - 3 Code Civ. Proc. § 90. '' Rule 80, Code Civ. Proc. § 1011. 8 LAW OF EEFEBEES. whom all the parties object cannot be appointed.^ That the one selected is the friend and confidential adviser of a nephew of one of the parties does not disqualify him, es- pecially when the fact is known to both parties when the appointment is made;^ nor does the fact that the firm of which the referee is a member is counsel for a corporation in which plaintiff is interested f nor the fact that in a for- mer action for divorce between the parties, the one ap- pointed found in favor of defendant ;* but one who has found one of the parties guilty in an action for divorce should not be appointed in proceedings as to the custody of the children,^ nor one who on a former trial found against one of the parties on a question of fact.^ This rule has been held inapplicable where a new trial was ordered on a question of lawJ While there is no express provision to that effect, it is to be presumed that a person who would be disqualified to act as a judge could not act as referee, that is, in a cause in which he is a party, or has been coun- sel, or is interested, or is related by consanguinity or affinity to any party in the controversy within the sixth degree.^ That the person named has causes pending in which the attorney for one of the parties is a referee is a valid objection.^ Where more than one is appointed in a case involving mechanical science rather than matters of law a mechanic may be selected,''" so in settling a merchant's estate a merchant may be appointed with others '^ in an action by an attorney for services, one lawyer and two lay- men were appointed,^^ so two grocers and one lawyer have 'Code Civ. Proc. § 1034. Sehemerhorn v. Van Alen, 13 How. ' sSup'm. Ct. Sp. T. 1885, Durant 82. «. O'Brien, 3 How. N. S. 313. ' Sup'm. Ct. Sp. T. 1857, Bill- 3 1878 Baird v. Mayor, 74 N. Y. ings «. Vanderbeck, 15 How. 395. 383. 8CodeCiv. Proc. § 46. *N. Y. Super. Sp. T. 1868, Clark 9 Sup'm Ct. 1883. Carroll v. Lul- D. Clark, 80 Super. 62. kins, 29 Hun, 17. 6 Sup'm. Ct. 1886, Matter of i« 1854 Olmsted i>. Loomis, 9 N. Bliss, 39 Hun, 594. Y. 433. 6 Sup'm. Ct. Sp. T. 1857, Bill- "Chancery, 1814, Roosevelt ii. ings «. Vanderbeck, 15 How. 395 ; Thurman, 2 Johns. Ch. 330. Sup'm Ct. 1860, Sharp v. Mayor, 31 12 gup-m. Ct. 1885, Hale v. Swin- Barb. 578 ; Sup'm. Ct. Sp. T. 1856, burne, 17 Abb. N. C. 881. BEFERENCE OF ISSUES BY CONSENT. 9 been appointed.^ It is not necessary that the referee should reside within the jurisdiction of the court appointing him.^ The objection to the person named must be taken promptly, proceeding after knowledge without objection is a waiver, if the objection can be waived.^ It is not necessary that the referee should reside, or the trial be had within the jurisdiction of the court.* When two causes involving the same question are referred to the same referee, and he has decided one in favor of plaintiff, the court may refer the second case to another.^ Where an action has been suc- cessively tried before two referees who have arrived at op- posite conclusions, on the second reversal the order of ref- erence will be vacated, and the cause sent to a jury ; ' after reversal of a judgment entered on a report, either party may move for a new referee ; '' unless expressly so directed in the order reversing the judgment and ordering a new trial, the order of reference is not vacated by the reversal f the contrary has been held in the common pleas.' It is discretionary with the court whether, on the request of the referee, it will vacate his appointment because he is unable to hear the cause within the time requested by the parties.^" § 4. Order in References by Consent. — The order must be made by the court, not by a judge," and should be made or IN. Y. Super. 1870, Townsend «. ings ■;;. Vanderbeck, 15 How. 395; Glens Palls Co., 10 Abb. N. S. 277. Sup'm. Ct. 1869, White v. Smith, 1 2 Sup'm. Ct. 1884, O'Brien «. Lans. 469 ; Sup'm. Ct. 1854, Schem- Catskill Co., 33 Hun, 636. erhorn v. Van Alen, 13 How. 83 ; 3 Sup'm. Ct. 1883, Carroll «. Luf- Sup'm. Ct. 1862, Murphy «. Win- kins. 29 Hun, 17 ; Sup'm. Ct. 1879, Chester, 35 Barb. 616 ; Sup'm. Ct. Catlin B. Adirondack Co., 19 Hun, 1860, Sharp v. Mayor, 31 Barb. 578; 3g9_ Sup'm. Ct. 1876, Kursted ii. O. & 41879, Blake v. Lyon Co., 77 N. A. R. R. Co., 54 How. 29. Y. 626. ' Com. PI. 1876, Devlin v. Mayor, 5 City Court, Brooklyn, Sp. T. 6 Daly, 486 ; 54 How. 11. 1880 Conley v. Petrie, 60 How. W1881, Parkhurst v. Berdell, 87 399. N. Y. 145. 6 Com. PI. 1868, StouvenelK. Ste- "Code Civ. Proc. § 1011; Buff, vens, 2 Daly, 319. Super. Sp. T. 1879, Stafford v. Ames, 'Sup'm. Ct. 1879, Catlin v. Adi- 8 Abb. N. C. 337; Sup'm. Ct. 1860, rondack Co., 19 Hun, 389. Bonner v. McPhail, 31 Barb. 106; 31880, Catlin i>. Adirondack Co., Sup'm. Ct. Sp. T. 1851, Keator v. 81 N. Y. 379, Sup'm. Ct. 1857, Bill- Ulster Co., 7 How. 41. 10 LAW OF BEFEKEES. entered at special term.^ The report of a referee appointed by a chamber order will not sustain a judgment entered on the report of a referee so appointed, when the party against whom it was so entered did not appear.^ A memorandum on the calendar of a judge at circuit " referred to L. K. M." gives to the person intended no authority to act as referee. He has no power to administer an oath, nor can a witness be punished for perjury committed before him.^ It is suffi- cient that the court made the order ; proof of entry is not essential ; * until it is didy made no default can be taken, although notice of trial is served ; ^ it must foUow the con- sent. The right to object that the cause is not referable is not waived by consent upon conditions not complied with in entering the order ; ^ if the referee appointed is not the one agreed upon the order is void, and the opposing party may proceed at the circuit as if none had been made,'' but the irregularity is waived by proceeding without objection before the one appointed. The order may be made now for then,^ by a judge who is disqualified by in- terest from trying the cause.^ If the designation of the referee be left to the court one or three may be appointed, unless the consent provides for five.^" When more than one is appointed one or more may be laymen." Except in 1 Code Civ. Proc. § 1011; Sup'm. Morrow, 69 N. Y. 452; Sup'm. Ct. Ct. Sp. T. 1864, Scudder v. Snow, 29 1860, Sharp v. Mayor, 31 Barb. 578. How. 95; Sup'm. Ct. Sp. T. 1850, sk Y. Super. Sp. T. 1867, Quin Litchfield V. Burwell, 5 How. 341; ^_ Lloyd, 30 Super. 157; Sup'm. Ct. Sup'm. Ct. 1850, Bonner -c. MoPhaU, gp t. 1851, Whalen «. Supervisors, 31 Barb, 106. g jj^,^ 278; Sup'm. Ct. 1868, Buck- 2 Sup'm. Ct. Sp. T. 1864, Scudder ^.^^ ^hapin, 53 Barb. 488; Sup'm. V. Snow, 39 How. 95. ^t. 1851, Luddington «. Taft, 10 3 Sup'm. Ct. 1860, Bonner v. Mo- j^^^^ ^^ g ,^ ^^._ g r^ ^gg^ Phail, 31 Barb. 106. ^^^^^^^ ^ S^„^ 29 ^J 95 * 1880, Eighmy u. People, 79 N. „ „ Y. 546; N.Y. Super. 1867, Wheeler ^'^up'm. Ct. 1879, Bell .. Yemoy, „ , QA Q .r: 18 Hun, 125. 1). Falconer, 30 Super. 45. 5 Sup'm. Ct. Sp. T. 1864, Scudder ""Code Civ. Proc. § 1025. i>. Snow, 29 How, 93. " Sup'm. Ct. 1885, Hale o. Swin- 61876, Preston v. Morrow, 66 N. bume, 17 Abb. N. C. 381; N. Y. Y. 453. Super. 1870, Townsend «. Glens ' Sup'm. Ct. Sp. T. 1852, Haner v. Palls Co., 10 Abb. N. S. 277. Bliss, 7 How. 246, See Preston v. KEPEBENCE OF ISSUES BY CONSENT. 11 an action to annul a marriage or for a divorce, one to whom all the parties object cannot be appointed.^ The order should state precisely what is referred. The referee pos- sesses no authority beyond that expressly given or neces- sarily implied ; ^ if it is intended that the referee shall try the cause the order should be to hear and determine ; ^ an order to take proof and report with his opinion gives no authority to determine the issues.* When " this cause " is referred all the issues are referred,^ including the right to take an account without entering an interlocutory judg- ment therefor.'' If the parties reside at different places provision may be made for sittings at each place/ but the court has no authority to insert in the order a direction that the hearing proceed on less than the statutory notice.^ The death of a party and the substitution of his personal representative does not affect the order.^ If three are appointed the order should provide that should a trial before three prove impracticable a motion for the discharge of two may be made.^" If the one appointed refuses to serve, the court must, unless the stipulation provides other- wise, appoint another;" if he refuses to serve f or thestatuto- ry fee, but is willing to go on and look to the prevailing party for his fee, either party may make a motion to remove him.^^ 1 Code Civ. Proc. § 1034. Hun, 41 ; Sup'm. Ct. 1859, Pratt v. 2Sup'm. Ct. 1860, Bonner v. Mc- Stiles, 9 Abb. 150; 17 How. 211; Phall, 31 Barb. 166 ; Sup'm. Ct. Sp. Sup'm. Ct. 1886, Central T. Co. v. T. 1858,Billings«.Baker, 6 Abb. 213. N. Y. & N. Co. 42 Hun, 602. 3N. Y. Super. Sp. T. 1871, Mer- 'Sup'm. Ct. 1807, Newland v. rill V. Merrill, 11 Abb. N. S. 74. West, 2 Johns, 188; Sup'm. Ct. Sp. . Ingersoll, 86 N. Y. 433. N. Y. Super. Sp. T. 1873. Goodyear =*N. Y. Super. 1866, Goodyear «. v. Williamsburg Co. 13 Abb. N. 8. Brooks, 27 Super. 683 ; N. Y- Su- 350 ; 1877, Martin v. Windsor Co. per. 1867, Wheeler «. Falconer, 80 70 N. Y. 101. Super. 45 ; 1877 Martin v. Windsor s N. Y. Super. Sp. T. 1856, Mc- Co. 70 N. Y. 101. Cullough v. Brodie, 13 Super. 659 ; "N. Y. Super. 1866, Goodyear «. Ct. App. 1870, Townsend v. Hen- Brooks, 27 Super. 683 ; 1881 Camp drieks, 40 How. 143 ; Ct. App. 1870, ■11. Ingersoll, 86 N. Y. 438. Kain «i. Delano, 11 Abb. N. S.' 29. ^N. Y. Super. 1866, Goodyear ». 'Sup'm. Ct. Sp. T. 1859, Sharp ». COMPULSOBY EEFEEENCE OF ISSUES. 13 reference in any case where a trial by jury could be de- manded under the constitution of 1777.' § 2. Action must be on Contract. — The facts authorizing a compulsory reference are the same now as they were prior to the adoption of the code ; ^ although the statute is, in terms, broad enough to include all actions involving a long account that do not require the decision of difficult ques- tions of law, the courts have uniformly held that the right to compel a reference was limited to actions founded on contract,* and contract includes covenant.* In Bloore v. Potter, 9 Wend. 480, a doubt was expressed whether the cause in covenant could have been referred in the face of opposition, and an order of reference in an action on cove- nant in Thomas v. Eeab, 6 Wend. 503 was reversed, but it was upon the ground that no account strictly as such was involved. The right to refer an action of covenant was conceded in both. § 3. Reference cannot be Compelled in Actions for Wrongs. — The court has no authority to order a reference in an action in tort, or sounding in tort ; ^ the contrary has been held in Mayor, 18 How. 213 ; Ct. App. 1838, Dederioks Adm'rs. v. Richley, 1870, Kainc. Delano, 11 Abb. N.S. 19 Wend. 108 ; Sup'm. Ct. 1833, 29 ; Sup'm. Ct. 1878, Barnes v. Bloore o. Potter, 9 Wend. 480 ; West, 16 Hun, 68. Sup'm. Ct. 1838, Silmser v. Ked- iCt. App. 1870, Townsend d. field, 19 Wend. 21 ; Sup'm. Ct. Hendricks, 40 How. 143 ; Sup'm. 1844, Van Rensselaer «. Jewett, 6 Ct. 1874, Brink v. Republic Co. 2 Hill, 378 ; Com. PI. 1865, Hatch v. T. &C. 550; N.Y. Super. Sp.T.1856, Wolfe, 1 Abb. N. S. 771 ; Sup'm. McCullough ■B. Brodie, 13 Super. Ct. 1880, Brooklyn Co. «. Reid, 21 659, 13 How. 346. Hun, 273. 2N. T. Super. Sp. T. 1856, Mc- ^Ct. App. 1870, Townsend n. Cullough V. Brodie, 13 Super. 659 ; Hendricks, 40 How. Pr. 148 ; Sup'm. more fully 13 How. 346 ; Ct. App. Ct. 1838, Dederioks Adm'rs. v. 1870, Townsend v. Hendricks, 40 Richley, 19 Wend. 108; Sup'm. Ct. How. 143. 1837, Silmser v. Redfield, 19 Wend. '^ Ct. App. 1870, Townsend v. 31 ; Sup'm. Ct. 1846, Beardsley t-. Hendricks, 40 How. Pr. 143 ; Sup'm. Dygert, 3 Den. 380 ; N. Y. Super. Ct. 1837, Silmser v. Redfield, 19 1879, Verplanek v. Kendall, 45 Su- Wend 21 ; .Sup'm. Ct. 1838, Deder- per. 525; Sup'm. Ct. 1819, Johnsons. icksAdm'rsB. Richlcy,19Wend.l08. Parmly, 17 Johns. 129 ; Com. PI. 4 Sup'm. Ct. 1830, Thomas v. 1867, Turner v. Taylor, 2 Daly. Reab, 6 Wend. 503 ; Sup'm. Ct. 279. 14 LAW OF EEFEEEES. some cases,^ but they are against the current of authority, and since the decision of the court of last resort in Town- send V. Hendricks, the question is no longer open for dis- cussion. A compulsory reference cannot be ordered in actions for damages for negligence ;^ nor to assess damages on de- fault in such cases,^ nor in an action against a sheriff for a false return,* nor in one against the trustees of a manufac- turing corporation for failure to make a report,^ nor in one to set aside an assignment for fraud,^ nor one for unliqui- dated damages for breach of contract,'' nor in one to assess damages in an action for specific performance of an agree- ment to convey real property, where defendant admits he never had title,^ nor in a controversy founded in tort be- tween the receiver of an insolvent corporation and a cred- itor thereof,^ nor in one against an attorney for mal-prac- tice,^" nor in one to rescind a sale for fraud. ^^ The rule is the same in equity as at law.^^ The right of trial by jury in common law actions for tort is absolute.''^ § 4. Complaint determiaes Character of Action. — The nature of the action is determined by the complaint.^* The answer 1 Sup'm. Ct. 1840, Lee v. Tillot- Buxton, 15 Abb. 353 ; 37 Barb. 13 ; son, 24 Wend. 388 ; N. Y. Super. Sup'm. Ct. 1863, Lansing v. Stone, 1851, Sheldon B. Wood,15 Super. 267. 37 Barb. 15. 2 Sup'm. Ct. 1850, McMaster v. ^ Sup'm. Ct. 1878, Wickham B. Booth, 4 How. 427 ; Sup'm. Ct. Prazee, 13 Hun, 431. 1880, Dunkin v. Sharp, 23 Hun, 132. i" Sup'm. Ct. 1877, Hoffman ii. 3 Com. PI. 1880, Thompson v Sparling, 12 Hun, 83. Finn, 9 Daly, 379. "Sup'm. Ct. 1886, Morrison v. 4 Sup'm. Ct. Sp. T. 1856, Dewey Horrooks, 40 Hun, 428. V. Field, 13 How. 437. 12 Sup'm. Ct. 1886, Rochester v. 6 Sup'm. Ct. Sp. T. 1876, Hyatt Mayor, 3 How. N. S. 527 ; 9 Civ. v. Roach, 1 Abb. N. C. 135 ; 52 Proc. Rep. 326, Sup'm. Ct 1886, How. 115. Morrison s. Horrocks 40 Hun. 428. « Sup'm. Ct. Sp. T. 1855, Draper i^N. Y. Super. Sp. T. 1873, God- V. Day, 11 How. 439. frey v. Williamsburg Co. 13 Abb. ■ N. Y. Super. 1874, Ross 1). N. S. 250. Combs, 37 Super. 289; Sup'm. Ct. "1872, DeGrauw ®. Elmore, SON. 1863, Stevenson v. Buxton, 15 Abb. Y. 1 ; 1873, Welsh v. Darragh, 53 N. 353 ; 37 Barb. 13 ; 1887, Untermeyer Y. 590; Ct. App. 1870, Untermeyer 1). Bernhauer, 105 N. Y. 531. v. Bernhauer, 7 Cent. Rep. 709; 105 8 Sup'm. Ct. 1863, Stevenson v. N. Y. 521. COMPULSORY REFERENCE OF ISSUES. 15 cannot change it ; ^ altlaough tlie court may in its discretion refuse a reference and order a trial before a jury when charges of fraud or wrong doing are set forth in the an- swer.^ Nor does the fact that a wrong is unnecessarily or incidentally alleged in the complaint change the character of the action. If the action is on contract and involves a long account the action may be referred notwithstanding such charges.^ Nor is it necessary that all the issues should be referable ; it is enough that the principal cause of action should be/ although as to some of the issues a jury trial is a matter of right.^ The contrary has been held in some cases,^ but these were prior in date to Place v. Cheese- borough, and the rule as stated may be regarded as settled. § 5. Action must involve an Account. — The action must involve an account, but any attempt to reconcile the con- flicting decisions as to what constitutes an account is almost hopeless.'' It is substantially agreed that numerous items of damage do not ; ^ that a number of items and distinct 1 Sup'm. Ct. 1874, Williams v. Al- len, 2 Hun, 377; City Court, Brook- lyn, 1876, Wood V. Hope, 2 Abb. N, C. 186 ; 1873, Welsh v. Darragh, 52 N. T. 590; N. Y. Super. 1884, Gregory v. Seaman, 51 Super. 517. 2 Sup'm. Ct. 1841, Levy v. Brook- lyn Co. 25 Wend. 687; N. Y. Super. 1861, McLean v. East River Co. 21 Super. 700; Sup'm. Ct. 1861, Free- man «. Atlantic Co. 13 Abb. 124; Sup'm. Ct. 1877, Martin b. Windsor Co. 10 Hun, 304; App. dismissed, 70 N. Y. 101. 3]Sr. Y. Super. 1862, Atooha v. Garcia, 15 Abb. 303; Sup'm. Ct. 1875, Mayor v. Genet, 4 Hun, 658 ; Sup'm. Ct. 1876, Harden v. Corbett, 6 Hun, 522 ; 1874, Vilmar v. Sohall, 61 N. Y. 564; Sup'm. Ct. Cir. 1879, People V. Peck, 57 How. 315; 1881, Harrington «. Bruce, 84 N. Y. 103; Ct. App. 1870, Townsend v. Hen- dricks, 40 How. 143. 4 1875, 'Place «. Cheeseborough, 63 N. Y. 315; N. Y. Super. 1859, Batch- elor ■». Albany Co. 31 Super. 346, N. Y. Super. 1861, Whittaker v. Desfosse, 20 Super. 678 ; Sup'm. Ct. Sp. T. 1850, Mills V. Thursby, 11 How. 113. ^N. Y. Super. 1875, Maryott v. Thayer, 39 Super. 417. « N. Y. Super. 1873, Evans «. Kalb- fleisch, 36 Super. 450 ; N. Y. Super. 1874, Ross 13. Coombs, 37 Super. 289. ' Batchelor v. Albany City Co. 31 Super, 346. 8 N. Y. Super. Sp. T. 1866, Ross 11. Mayor, 2 Abb. N. S. 266; Sup'm. Ct. 1831, Thomas v. Reab, 6 Wend. 503; Sup'm. Ct. 1837, Silmser v. Bedfield, 19 Wend. 21; Sup'm. Ct. 1844, Van Renselaer v. Jewett, 6 Hill, 373; Sup'm. Ct. Sp. T. 1856, Dewey >. Field, 13 How. 437; N. Y. Super. 1856, McCullough v. Bro- 16 LAW OF REFEREES. facts do not.^ A bill of lading is not an account;^ nor is a bill of particulars ; ^ nor is an attorney's bill for fees and services in a single matter;* nor one bill of fifty items de- livered at one time ; ^ nor one of seven items delivered at tvro different times.^ It has repeatedly been held that an account consisting of items on one side only should be referred ; that the dealings need not be of a mutual or reciprocal character." Upon this ground actions on a policy of insurance for injuries to various articles covered thereby have been referred.® The right to order a refer- ence in such cases has been expressly denied.^ In each of the cases cited fraud v?as alleged in the answer, but this did not change the character of the action ; ^^ and in Brink V. Republic Co. the question did not turn on the question of discretion, but was put squarely on the ground of strict right. Samble v. Mechanics' Co. 1 Super. 560, is cited as die, 13 How. 346; Com. PI. Chamb. 1877 ; Randall v. Kingsland, 53 How. 513: Com. PL Chamb. 1883, Hull v. Allen, 66 How. 124; Sup'm. Ct. 1838, Dedericks Adm'rs. v. Richley, 19 Wend, 108; 1881, Camp v. IngersoU 86 N. Y. 348; 1886, Morrison v. Horroeks, 103 N. Y. 675; 1887, Un termeyer'S.Bemliauer, 105 N.Y. 521. iCom. PI. 1874, Dittenhoefer v. Lewis, 5 Daly, 73; Sup'm. Ct. 1877, Bell «. Mayor, 11 Hun, 511 ; Sup'm. Ct. Sp. T. 1859, Sharp i>. Mayor, 18 How. 213 ; Sup'm. Ct. 1865, Dickin- son u. Mitchell, 19 Abb. 286. 3 Sup'm. Ct. Sp. T. 1846, Miller ®. Hooker, 2 How. 171. 3 1887, Untermeyer v. Belnhauer, 105 N. Y. 521; Sup'm. Ct. 1865, ■ Dickinson & Mitchell, 19 Abb. 286. 4 Sup'm. Ct. 1877, Felt v. Tififany, 11 Hun, 63; Sup'm. Ct. 1881, Tracy ■c. Stevens, 61 How. 265 ; Com. PI. 1874, Dittenhoefer v. Lewis, 5 Daly, 73; N. Y. Super. 1873, Evans v. Kalbfleisoh, 16 Abb. N. 8. 13 ; Sup'm. Ct. 1874, Flanders v. Odell, 2 Hun, 664; 16 Abb. N. S. 347. 5 Sup'm. Ct. Sp. T. 1846, Switt ®. Wells, 3 How. 79. 6 Sup'm. Ct. 1846, Smiths. Brown, 3 How. 9. 'N. Y. Super. 1874, Hosack «, Hyerdahl, 38 Super. 391; 60 N. Y 634; Sup'm. Ct. 1838, Dedericks Adm'rs. ■». Richley, 19 Wend, 108 1881,Camp v. IngersoU, 86 N. Y. 433 Sup'm. Ct. 1844, Van Rensselaer v. Jewett, 6 Hill. 373; Sup'm. Ct. 1840; Lee ■«. Tillotson, 24 Wend. 337; Sup'm. Ct. Sp. T. 1856, Dewey v. Field, 18 How. 437. 8]Sr. Y. Super. 1869, Batchelor v. Albany City Co. 31 Super. 346; N. Y. Super. 1829, Samble v. Mechan- ics' Ins. Co. 1 Super, 560; N. Y. Super. Sp. T. 1875, Ryan v. Atlantic Co. 50 How. 321. 9 Sup'm. Ct. 1874, Brink ti. Re- public Co. 2 T. & C. 550 ; Sup'm. Ct. 1861, Freeman ». Atlantic Co. 10 Abb. 124; Sup'm. Ct. 1841, Levyu. Brooklyn Co. 35 "Wend. 687. >» 1873, Welsh ■b. Darragh, 52 N. Y. 590. COMPULSOEY EEFEBENCE OF ISSUES. 17 authority in some well considered cases,^ in others it is distinctly repudiated.^ In some the order has been sus- tained where the number and quantity of the articles has been admitted, but not the identical ones charged;^ in others, presenting many points of similarity, it has been refused.* Goods sold and delivered, and work, labor and services are matters of account; ^ so are attorney's fees, services and disbursements.^ An action for damages liqui- dated, or capable of being liquidated by computation, is referable ; '' so is one for an accounting by a tenant in com- mon, though fraud and conspiracy are alleged ; ^ so is one to compel the delivery of securities loaned, though wrong- ful detainer is alleged ; ^ or one to foreclose a mechanic's lien where the owner alleges he has paid all that is due, that he has a right to certain deductions determinable only by an examination into the details of the work, over three hun- dred in number ; ^^ so if the acount consists of items on one side only,^^ as an action for endorsing a large number of accommodation notes ;^^ so when the action was on a prom- issory note, and the answer alleged that it was held as collateral security for debts for which plaintiff also holds IK Y. Super. 1869, Batohelor v. dell, 33 Hun, 130; Sup'm. Ct. 1883, Albany City Co. 31 Super. 346; Stebbins v. Cowles, 30 Hun, 538; Com. PI. 1885, Van Orden v. Tilden, Com. PI. Sp. T. 1879, Byron v. Dela- 13 Daly, 396. mater, 1 Law. Bul. 62; Sup'm. Ct. 2 Sup'm. Ct. 1874, Brink d. Re- 1883, Merritt v. Vegelius, 28 Hun, public Co. 3 T. & C. 550; 1881, Camp 420; N. Y. Super. 1884; N. Y. Su- V. IngersoU, 86 N. Y. 433. per. 1884, Gregory v. Siaman, 51 s 1873, Welsh b. Darragh, 52 N. Super. 517. Y. 590; Com. PI. 1885, Van Orden '1881, Chambers v. Appleton, 84 «. Tilden, 13 Daly, 396. N. Y. 649. 4 Sup'm. Ct. 1879, Keep ». Keep, 8 1881, Harrington «. Bruer, 84 58 How. 139; N. Y. Super. Sp. T. N. Y. 103. 1881, Hertwell v. Albert, 3 Law. 91875,Vilman».Schall,61N.Y.564. Bul. 77. 1" Sup'm. Ct. 1877, Tooker ®. Rin- 5 Sup'm. Ct. Cir. 1879, People v. aldo, 11 Hun, 154. Peck, 57 How. 315 ; Sup'm. Ct. " N. Y. Super. 1874, Hossack v. 1875, Mayor v. Genet, 4 Hun, 658 ; Heyerdahl, 38 Super. 391; 60 N. Y. 67 Barb. 375. 634; Sup'mi Ct. 1874, «Bensel b. 6 Sup'm. Ct. 1885, Hale v. Swin- Gait, 3 Hun, 679 ; 1881, Camp v. burne, 17 Abb. N. C. 381 ; Com. PI. IngersoU, 86 N. Y. 433. 1881, Sohemerhom «. "Wood, 4 Daly, i^ Com. PI. Sp. T. 1859, Masterton 158 ; Sup'm. Ct. 1880, Carr v. Ber- v. Howell, 10 Abb. 118. 18 LAW OF BEFEEEES. other securities, and prayed for an accounting.^ In an action to dissolve a co-partnership which is denied, and the question has to be decided by an examination of the books, a reference may be ordered ; ^ so where plaintiff asks for a dissolution of a co-partnership which is admitted, for an accounting and a receiver ; ^ so when, in an action to redeem a certificate of stock given to secure debts and future advances, it is necessary to take an account of such debts and advances.* The characteristic of a referable account, says one of the cases, is that the sums have to be remembered figure by figure, and combinations thereof made.^ There is no hard and fast rule governing all the cases, and whether or not a reference can be compelled, depends more upon the state of the pleadings and the dis- cretion of the court, than upon any rules or definitions. § 6. It must be a Long Account. — The action must not only involve an account, but it must be a long account.^ As to what constitutes a long account the decisions are by no means uniform. One bill containing numerous items does not ; it is in fact but one item.'' It has been held that four items do not,^ that five do not,^ that seven do not,^" that seven, all except three of the same date do not.^^ It has also been held that three items, some of them gross charges for work and labor do,^^ that twenty-six do.^^ Where only two items of an account were disputed, one of which was an aggregate of small bills, a reference was ordered ;^^ so ^N. y. Super. 1876, Blackstone T. 1886, Rose v. Mayor, 32 How. Bank v. Bogart, 41 Super. 292. 164 ; 2 Abb. N. S. 266. 2 Sup'm. Ct. Sp. T. 1850, Mills ». ,„\Sup'm. Ct. 1884, Parker v. Snell, r,.u v^ 11 TT 11Q 10 Wend. 577. Thursby, 11 How. 113. qa , r^^. loct; -r.- 1 • 3 Sup'm. Ct. Sp.T. 1856, Jackson 'Y.^^J^'-JIZ' ^^<^^''^°'^ ^ ..De Forrest, 14 How. 81. ^fon ' p, i«t^- ■ .. . ^ Sup'm. Ct. 1871, Ludlow «. Am. ,, " ^"'"if,'" ^^^^' ^""'"'^ "• ^^^^^' Exch.Bank 59 Barb. 509. ,7^ \ \ o r„ io.„ o . 5N. Y. Super. 1874, Konaldo .. ^"^-^Pf^^*- ^P" ^- ^^' ^'^''^'■ Mechanics' Bank, 37 Super. 208. ^^T' ^ p°T«'-„ t,^ « Code Civ. Proc. § 1018. '' ^^J 1 ' ^'^°'"P^°" "" ^"- ' Sup'nf. Ct. 1874, Brink v. Repub- '"«!• f » How. 246. lie Co., 2 T. &C. 550; Sup'm. Ct. "^^'^' ^elsh v. Darragh, 52 N. 1863, Stevenson D. Buxton, 37 Barb. ,, „ , „,,„„,„, 15 ; 15 Abb. 352 ; N. Y. Super. Sp. , ^up-m. Ct. 1874, ^^ illiams t'. Al- len, 4 T. & C. 673. COMPULSOEY EEFEliENCE OP ISSUES. 19 where the action was for several items of damage at differ- ent times for breach of contract.^ § 7. The Account must be Directly Involved. — To authorize a compulsory refejrence the long account must be directly — not collaterally involved, must be the immediate object of the suit ; ^ if any other issue must be tried before the long account can be reached, the motion for a reference must be denied.'^ Where the action was on a contract which was denied, a reference was refused, although a long account was collaterally involved ; * so where plaintiff must recover, if at all, on an account stated, although many items entered into the account ; ^ so where, in an action by an assignee of a copartnership it was alleged that a settlement which had been made was procured by fraud, which was denied ;^ so where in an action by the receiver of a corporation to re- cover a dividend wrongfully paid it was necessary to examine the assets and accounts ; '^ so where sales and amounts were admitted, and the only question was through whom the sales were made, and the amounts received ; ^ so where in an action for a sum certain for services, and a balance for 1 1881, Chambers v. Appleton, 84 per. 203 ; Com. PI. 1874, Magown N. Y. 649. 11. Sinclair, 5 Daly, 63 ; Sup'm. Ct. 2 1881, Camp v. Ingersoll, 86 N. Sp. T. 1866, Bushnell «. Eastman, 2 Y. 433 ; Ct. App. 1870, Kaln v. Del- Abb. N. S. 411 ; Sup'm. Ct. 1885, ano, 11 Abb. N. S. 29 ; Sup'm. Ct. Claflin v. Drake, 38 Hun. 144. 1838, Dederieks Adm'rs. v. Richley, ^ Sup'm. Ct. 1885, Claflin i). Drake, 19 Wend. 108 ; Sup'm. Ct. 1837, 38 Hun, 144; Ct. App. 1870, Kain Silmser i). Redfield, 19 Wend. 21 ; v. Delano, 11 Abb. N. S. 29 ; Com. Sup'm. Ct. Sp. T. 1859, Cameron v. PI. 1874, Magown i). Sinclair, 5 Daly, Freeman, 18 How. 310; N. Y. Super. 63. 1861, Whittaker v. Desfosse, 20 Su- < Sup'm. Ct. 1879, Keep d. Keep, per. 678 ; Sup'm. Ct. Sp. T. 1854, 58 How. 139. Keeler i). Poughkeepsie Co. 10 How. ^ ]sf. y. Super. 1877, Rowell v. 11 ; Sup'm. Ct. 1879, Keep ». Keep, Giles. 53 How. 244. 58 How. 139 ; Ct. App. 1870, Town- « Sup'm. Ct. Sp. T. 1859, Came- send V. Hendricks, 40 How. 143 ; ron v. Freeman, 10 Abb. 333 ; 18 Com. PI. 1883, Streat?). Rothschild, How. 310. 12 Abb. K. C. 382; Com. PI. 1867, 'Sup'm. Ct. 1878, Wiokham v. Turner «. Taylor, 2 Daly, 278; Frazee, 13 Hun, 431. Sup'm. Ct. Sp. T. 1852, Graham D. 8 Com. PI. 1874, Magown «. Sin- Golding, 7 How. 260 ; N. Y. Super, clair, 5 Daly, 63. 1874, DeGrafle v. McKinley, 38 Su- 20 LAW OP EEFEEEES. work and labor, the answer denied the claims and demanded damages for plaintiffs fraud ; ^ but where plaintiff renders an accout embracing many items which defendant admitted, but set up other matter involving proof of value, a reference was ordered, on the ground, it would seen*, that where the account is any way assailed, the cause is referable,^ so when the action was on a contract to furnish power and room, defendants to make advances, the issue being whether ad- vances were made ;^ so where the action was for procuring endorsements on a large number of notes,* but an action on a special contract to do certain work for a specified sum does not involve a long account though several items of performance have to be proved,^ nor does one for damages, for failure to fulfill a contract to complete houses within a certain time, although numerous particulars must be shown.^ It is immaterial whether the account is introduced by the complaint or answer,''^ though the one brought in by an- swer is equitable in its nature.^ "Where, in mandamus pro- ceedings the return and answer show that a long account is involved a reference may be ordered f so where, in an action to dissolve a partnership the answer alleges that an account had been taken, since which no contract had been made ;''' but where, in ,an action for an accounting by a partner the answer admits the partnership and sets up a release to which the plaintiff replies alleging fraud in obtaining the release, the account is collateral ; ^^ so in an action to open an account stated and for a new accounting ^^ in these, and 1 Sup'm. Ct. 1875, Miner v. Gar- gart, 41 Super. 292 ; N. T. Super, diner, 6 T. & C. 343. 1875, Maryott v. Tliayer, 39 Super. 2 Sup'm. Ct. 1876, Cowdenr. Trale, 417 ; Sup'm. Ct. 1877, Tooker v. 6 Hun. 532. Rinaldo, 11 Hun, 154. 3Com. PI. 1854, Smith v. Dodd, 8]sr. y. Super. 1876, Blackstone 3 E. D. S. 348. Bank v. Bogart, 41 Super. 298. ■•Com. PL Sp. T. 1859, Master- ^ Sup'm. Ct. Sp. T. 1881, People ton 11. Howell, 10 Abb. 118. v. Wadaworth, 61 How. 57. 6N. Y. Super. 1873, Evans i-. i" Com. PI. 1878, Kennedy «. Shil- Kalbfleisch, 36 Super. 450. ton, 9 Abb. 157. « Sup'm. Ct. 1876, McDonnell v. " Com. PI. 1883, Streat v. Roths- Stevens, 9 Hun, 28. child, 12 Abb. N. C. 883. 'Code Civ. Proc. § 1013; N. Y. i^gup-uj. ct. Sp. T. 1867, Mitch- Super. 1876, Blackstone Bank v. Bo- ell v. Stewart, 8 Abb. N. S. 250. COMPULSORY EEFEEENCE OF ISSUES. 21 similar cases, tlie question whether plaintiff is entitled to an account is the real issue, and should first be tried.' § 8. The Trial must not reqiiire the Decision of difficult Ques- tions of Law. — A reference will not be ordered when the trial will require th§ decision of a difficult question of law, although a long account is directly involved ; ^ the questions of law are not confined to the facts presented by the issues ; they may grow out of their very character, and the evidence necessary to their investigation,^ or the difficulty of adjust- ing the equities between the parties.* Where the pleadings show that a difficult question of law will arise, a reference will be refused.^ 1 Sup'm. Ct. 1859, Pratt d. Stiles, 1875, Patterson ®. Stettauer, 89 Su- 17 How. 211: Sup'm. Ct. 1856, per. 413. Palmer «. Palmer, 13 How. 363; ^N. Y. Super. 1866, Goodyear «. Sup'm. Ct. 1857, Luddington v. Brooks, 27 Super. 682 ; Sup'm. Ct. Taft, 10 Barb. 447. 1845, Ives ». Vandewater,l How. 168. 2 Code Civ. Proc. § 1013; Com. ^N. Y. Super. 1867, Wheeler b. PI. 1874, Magown «. Sinclair, 5 Daly, Falconer, 30 Super. 45. 63; Sup'm. Ct. 1845, Ives «. Vande- * Sup'm. Ct. 1825, Shaw ». Ayrs, 4 water, 1 How. 168 ; N. Y. Super. Cow. 52. 22 LAW OF BEFEBEES. CHAPTEE IV. COMPULSOEY EEFEEENCE. Section 1. — Compulsory reference, application for, how made. Sbotion 3. — Moving papers, contents. Section 3. — Application for, how resisted. Section 4. — What objections must be raised on motion. Section 5. — Stipulation to defeat reference. § 1. Compulsory Reference, Applicati«n for, How Slade. — A motion for a reference is a non-enumerated motion,^ and must be made at special term on notice ; ^ if made at circuit it cannot be made until the cause reached on the calendar, un- less notice be given, or both parties heard.^ If, when the case is called at circuit, it appears from the inspection of the pleadings that a long account is involved, or if after the trial is begun it so appears, the court may, of its own mo- tion, take the case from the jury and send it to a referee. * The motion cannot be made until the cause is ready for trial,^ but may be as soon as issue is joined ; the moving party is not bound to wait to see if his opponent will amend.^ But one reference will be ordered in cross-suits." The motion can be made at circuit only when the cause is on the calendar and ready for trial, and the object 1 Sup'm. Ct. 1850, Conway v. 1867, Wheeler v. Falconer, 30 Su- Hitchins, 9 Barb. 378. per. 45; Sup'm. Ct. 1824, Jansen v. 2 Sup'm, Ct. 1850, Conway «. Tappen, 3 Cow. 34 ; Sup'm. Ct. Sp. Hitchins, 9 Barb. 378; Rule 38; T. 1846, Dutohere.Wilgers, 2 How. Sup'm. Ct. Sp. T. 1864, Scudder v. 180; N. Y. Super. 1866, Goodyear «. Snow, 29 How. 95. Brooks, 27 Super. 683 ; 3 Abb. N. S. 3 Sup'm. Ct. 1837, McCoun v. Row- 396. ley, 19 Wend. 85. 6 gup'ra. Ct. Sp. T. 1849, Enos «. ■• Sup'm. Ct. 1864, Holmes ». Thomas, 4 How. 290. Bennett, 28 How. 289. ' Sup'm. Ct. 1804, Codwise v. 5 Sup'm. Ct. 1860, Hawkins v. Hacker, 3 Cai. 251 ; Sup'm. Ct. 1830, Avery, 33 Barb. 551; N. Y. Super. Hart «. Trotter, 4 Wend. 198. COMPULSOEY REFERENCE. 23 is to preA'ent a trial.^ Where defendant in an action on a long account waited until the cause was on the day calen- dar, and then moved before another judge, the motion was properly denied on the ground of laches.^ ' A refusal to refer, at trial term, is an order, though no formal order is entered, and the question is ?'es adjudicata? Where the propriety of a reference is shown on the trial the cause may be taken from the jury, but should be finally so taken ;* delay in moving may defeat the motion.^ § 2. Moving Papers, Contents. — The affidavit on motion for a compulsory reference should be made by a party ; if made by the attorney a sufficient reason therefor should be given,^ unless the pleadings are made part of the moving papers, in whiijh case the affidavit may be made by the attorney.'' The papers should show the nature of the action, and that it is in a condition to be referred ; ^ it must be made clearly to appear from the pleadings, or affidavit, or both, that a long account is necessarily involved ; facts must be stated ; a naked allegation to that efi^ect is insuffi- cient.^ An affidavit in an action by an attorney for his fees and services, alleging that plaintiff has prosecuted and de- fended several suits, drawn various instruments, and coun- selled and advised in various matters, is insufficient.^" It 1 N. T. Super. 1867, Wheeler v. How. 164, Sup'm. Ct. 1846, Bolton v. Falconer, 30 Super. 45. MoCullough, 2 How. 165. 2 Sup'm. Ct. 1875, Mayor «. Genet, ' Sup'm. Ct. 1864, Holmes v. Ben- 4 Hun, 658 ; 67 Barb. 275. nett, 28 How. 289. 3N. y. Super. 1867, Wheeler v. ^'^. Y. Super. 1867, Wheeler v. Falconer, 30 Super. 45. Falconer, 30 Super. 48 ; Sup'm. Ct. ^N. Y. Super. 1856, Bachman ». 1864,Holmes?).Bennett,38How.289. Cheeseborough, 12 Super. 238; "ot. App. 1870, Kainu. Delano, 11 Sup'm. Ct. 1857, Church v. Freeman, Abb. N. S. 29 ; N. Y. Super. Sp. T. 16 How. 294. 1874, Lord v. Conner, 48 How. 95; 6 N. Y. Super. 1867, AVheeler v. N. Y. Super. 1874, De Graff ». Mc- Falooner, 80 Super. 45 ; Sup'm. Ct. Kinley, 38 Super. 203 ; Sup'm. Ct. 1875, Mayor «. Genet, 4 Hun, 658; 67 Cir.1854, KeelerB. Poughkeepsie Co. Barb. 275. 10 How. 11 ; N. Y. Super. 1866, 6 Sup'm. Ct. 1843, Wood v. Crown- Betts v. Eagleton Co. 1 N. Y. St. er, 4 Hill, 548 ; Sup'm. Ct. 1845, Me- Rep. 241. sick V. Smith, 2 How. 7; Sup'm. Ct. i° N. Y. Super.1886, Bettss.Eagle- 1846, Boss V. Beecher, 2 How. 157 ; ton Co. 1 N. Y. Rep. 241 ; 10. Civ. Sup'm. Ct. 1846, Little v. Bigelow, 2 Proc. 218. 24 LAW OP EEFEKEES. must further be made to appear that a long account is directly, not incidentally, nor collaterally involved,^ and that the taking of such account will dispose of all the rights of the parties.'^ The affidavit should also allege that the trial will not require the decision of difficult questions of law,^ although it has been held that this was matter of defense, and need not appear in the moving papers.* § 3. Application for, how Resisted. — The application may be resisted by showing, either from the moving papers or from the pleadings and affidavits, that the action does not belong to the class of referable causes,^ or by any matter that controverts the case made by the moving papers. If the trial will require the investigation of difficult questions of law the precise questions must be stated,^ and it must be made to appear that the questions are really difficult ; a mere allegation to that effect is insufficient.'' Since refer- ences are never matters of right, but always of discretion,* any matter tending to move the discretion of the court to refuse the application is admissible. Where, from the pleadings and schedules, it is doubtful whether the cause is referable, a reference will be ordered if the moving party's allegation that a long account is involved is uncontradicted.^ Where the evident purpose is delay, the motion ■will be de- nied ; •'*' so where, on a motion by defendant it is made to 1 Ct. App. 1870, Kain D. Delano, n 6 Johns. 329; N. T. Super. 1875, Abb. N. S. 39 ; 1881, Camp v. In- Patterson ». Stettaner, 39 Super. gersoU, 86 N. Y. 433. 413 ; Sup'm. Ct. 1826, Anonymous ; 2N. Y. Super. 1867, Wheeler v. 5 Cow. 423; Sup'm. Ct. 1825, Shaw Falconer, 30 Super. 45. v. Ayrs, 4 Cow. 52 ; N. Y. Super. 3 N. Y. Super. Sp. T. 1886, BettsD. Sp. T. 1875, Ryan v. Atlantic Co. 50 Eagleton Co. 1 N. Y. St. Rep. 241. How. 321 ; Sup'm. Ct. Sp. T. 1835, 4 Sup'm. Ct. Sp. T. 1855, Barber v. Barber «. Cromwell, 10 How. 351. Cromwell, 10 How. 351. ' Sup'm. Ct. 1826, Anon. 5 Cow. 5 Ct. App. 18T0, Kaln ii. Delano, 11 433 ; Sup'm. Ct. 1825, Shaw s. Ayrs, Abb. N. S. 29; Ct. App. 1870, Town- 4 Cow. 53; Com. PI. 1874, Magown send 1). Hendricks, 40 How. 143; v. Sinclair, 5 Daly, 63. 1881, Camp v. IngersoU, 86 N. Y. ^^nte, pp. 3, 12. 433. 9 Sup'm. Ct. 1874, Continental •i Sup'm. Ct. Sp. T. 1853, Dewey «. Co. v. Industrial Co. 1 Hun, 118 ; 3 Field, 13 How. 437; Sup'm. Ct. T. & C. 758. 1803, Lusher v. Walter, 1 Cai. 149 ; w Sup'm. Ct. 1875, Mayor I'.Genet, Sup'm. Ct. 1810, Salisbury v. Scott, 4 Hun, 658. COMPULSOKY EEFEEENOE. 25 appear that tlie additional expense may work a wrong, or be oppressive.^ The court may refuse to refer an attorney's action for services, although a long account is directly in- volved, where the claim is resisted on the ground that it is exhorbitant and oppressive.^ If the cause is referable, that it has once been tried by a jury is no answer to the ap- plication ; ^ nor, in a cause triable only by the court that the opposing party intends to move to have issues framed to be tried by a jury ; * nor that an order of arrest has been obtained on allegations of fraud in the complaint ; ^ nor that the trial will involve a question of fraud ; ^ nor that some of the causes of action are not referable.''' That plaintiff is insolvent and unable to pay the fees of the referee is no answer to' the application ; ^ that the action is brought in bad faith is not ; ^ that a speedy trial may be had at special term or circuit is.'"' Where the answer con- tains allegations of fraud a reference may be refused, although a long account is involved ; ^^ it will be refused where the account cannot be taken until other issues are deter- mined ; ^^ but if any one of the issues involves a long account a reference may be ordered. ^^ The contrary has been held,^* but the decision of the court of appeals would seem to settle the question. In an attorney's action for services it may IN. Y. Super. 1872, Godfrey?). " Sup'm. Ct. Chamb. 1886, Rooh- WilliamsburgCo. ISAbb. N. S.250. ester v. Mayor, 3 How. N. S. 527; 2 Sup'm. Ot. 1875, Martin d. Wind- 9 Civ. Proc. 226 ; N. Y. Super. Sp. sor Co. 10 Hun, 304; 70 N. Y. 101. T. 1872, Godfrey ii. Williamsburg 3N. Y. Super, Sp. T. 1852, Brown Co., 12 Abb. N. S. 250. V. Bradshaw, 8 How. 176. " Sup'm. Ct. 1875, Martin b. Wind- * N. Y. Super. 1866, Goodyear v. sor Co. 10 Hun, 304 ; 70 N. Y. 101 ; Brooks, 27 Super. 683. N. Y. Super. 1866, Goodyear v. 5 N. Y. Super. Sp. T. 1863, Ato- Brooks, 2 Abb. N. S. 296 ; N. Y. cha ®. Garcia, 15 Abb. 303. Super. Sp. T. 1873, Godfrey v. Wil- 6 1873, Welsh u. Darragh, 52 N. liamsburgh Co. 12 Abb. N. S. 250. Y. 590; N. Y. Super. 18, 1875, Pat- i^Ct. App. 1870, Kain «. Delano, tersonc. Stettauer, 39 Super. 413. 11 Abb. N. S. 29; 1881, Camp «. ' 1875, Place b. Cheeseborough, Ingersoll, 86 N. Y. 433. 63N. Y. 315. I'' 1875, Place v. Cheeseborough, 8 Sup'm. Ct. 1875, Place v. Cheese- 63 N. Y. 315. borough, 4 Hun, 577. w N. Y. Super. 1873, Evans «. 9 Sup'm. Ct. 1875, Place v. Cheese- Kalbfleisch, 16 Abb. N. S. 13. borough, 4 Hun, 577. 26 LAW OF EEFEEEES. be shown that they were rendered under a special contract to render the services for a sum certain/ or that a gross sum is charged for numerous items.^ Where the principal issue is whether or not a contract has been performed, a ref- erence will not be ordered simply because, to show perform- ance, numerous items have to be proved.^ The burden of proof is on the moving party. Any matter that tends to show that for any reason the cause is not referable may be used in opposition. That one of the parties is a receiver is not a ground for denying the motion.* The question of power is always involved.^ § 4. What Objections Must be raised on Motion. — The objection that the issue involving a long account is immaterial, must be taken when the motion is made f so must one that the order was made by the wrong branch of the court,'^ or that the cause is not ready for trial,^ or that the cause is not at issue as to all the parties ; ^ so of an objection to -the person named as referee,^" or that other necessary parties have not been served with process.-'^ If, in substituting one referee for another, the order directs that the evidence already taken be received before the substituted referee, the objec- tion is waived by failure to object, or to appeal from the order,^^ but proceeding with the reference does not waive the right to move to set aside an order the court had no power to grant. ^^ IN. Y. Super. 1873, Evans v. eSup'm. Ct. 1870, Lawless v. Kalbfleisch, 16 Abb. N. S. 13; Com. O'Mahony, 9 Abb. N. S. 44. PI. Chamb. 1883, Hull ii. Allen, 66 '1862,Forrest ».Forest,25N.T.50]. How. 124. sSup'm. Ct. 1860, Hawkins v. 2N. T. Super. 1881, Davis v. Avery, 32 Barb. 551. Walsh, 48 Super. 515. ^ Sup'm. Ct. 1860, Hawkins v. 3N. Y. Super. 1874, DeGraff «. Avery, 32 Barb. 551. MoKinley, 38 Super. 203 ; Sup'm. i» Sup'm. Ct. Sp. T. 1857, Billings Ct. 1879, Keep «. Keep, 58 How.139. ■». Vanderbeok, 15 How. 295 ; 1885, < Sup'm. Ct. 1880, Dunkin v. Durante. O'Brien, 2 How. N. S.313. Sharp, 22 Hun, 132. " Sup'm. Ct. 1860, Hawkins t. 6 N. Y. Super. 1874, Eoss«. Combs, Avery, 32 Barb. 551. 37 Super. 289; Ct. App. 1870, Kain 12 N. Y. Super. 1887,Griffin v. Min- c. Delano, 11 Abb. N. S. 29 ; 1873, er, 54 Super. 46. "Welsh «. Darragh, 52 N. Y. 592; « Sup'm. Ct. 1874, Brink v. Re- Ct. App. 1870, Townsend t). Hen- pnbilc Co. 2 T. & C. 550. dricks, 40 How. 148. COMPULSOEY EEFEBENCE. 27 § 5. Stipiilation to Defeat Reference. — Where, in a referable action, the opposing party offers a stipulation to defeat a reference, the court may prescribe the form of the stipula- tion.^ In an action for goods sold embracing twenty items, the sale whereof was denied, the order of reference was reversed upon defendants stipulating not to question num- ber, price, or value of the goods ; ^ where, on an account of four items, defendant offered to admit all but one, a refer- ence was refused f where, on appeal from the order of refer- ence in an action by an attorney for services, the defendant stipulates to admit performance and value, the order will be reversed ; * so where the opposing party offers to admit the items if held liable therefor.^ Where, in a referable case the opposing party stipulates not to question the number, character, or value of the items making up the account, a reference was ordered ; ^ where the action was to recover money obtained by false credits, and plaintiff offered to stipulate to claim only the amount actually received, a reference was ordered ; '^ but an offer, in an attorney's action for services, to admit the rendering and value conditioned upon a favorable decision of an appeal from the order of reference cannot be allowed.^ The stipulation should be read on the hearing of the motion. iSup'm. Ct. 1875. McAndrew «). ^^.y. guper. 1883, Day «. Jamie- Place, 5 Hun, 285. son, 49 Super. 373. 2Sup'm. Ct. 1869, Siegel «. Held, 6 1875, Welsh v. Darragh, 52 N. 36 How. 506. Y. 590. 3 Sup'm. Ct. Sp. T. 1846, Mullin ' Sup'm. Ct. 1874, Brush v. Gait, 11. Kelly, 3 How. 13. 2 Hun, 678. * Com. PI. 1874, Dittenhoefer 'v. * Sup'm. Ct. 1880, Carr v. Berdell, Lewis, 5 Daly, 73. 32 Hun, 130. 28 LAW OF BEFEREES. CHAPTEE V. ORDER OF REFERENCE. Section 1. — Selection of referee. Section 3. — Order, form and contents. Section 3. — Reviewing the order. § 1. Selection of Referee. — In an action to annul a marriage, or for a divorce or a separation ; or an action against a cor- poration, to obtain a dissolution thereof, or the appointment of a receiver of its property, unless it is brought by the attorney-general ; or an action wherein a defendant to be affected by the result of the trial is an infant, the court must designate the referee.^ In all other actions the parties may by stipulation select him ; ^ if the referee named in the stip- ulation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another unless the stipulation expressly provides otherwise,^ if the parties cannot agree upon a referee the court may appoint one.* Where the selection is made by the parties, anynum- ber not exceeding five, may be appointed," when by the court, one or three maybe designated.^ The court may in a proper case increase the number from one to three, but the motion therefor must be made at special term on notice.'' The general term in affirming an order of reference cannot in- crease the number ; ^ nor, where the cause has been referred to one, win the special term entertain repeated applications for increase.^ When more than one is appointed, the order 1 Code Civ. Proo. 1011, 1013. ' Com. PI. 1880, Devlin v. Mayor, 2 Code Civ. Proo. § 1011. 9 Daly, 334. a Code Civ. Proc. § 1011. « Com. Fl. 1880, Devlin b. Mayor, « Code Civ. Proc. § 1011. 9 Daly, 334. 6 Code Civ. Proc. § 1025. » Com. PI. 1883, Devlin v. Mayor. 6 Code Civ. Proc. § 1035. 11 Daly, 363. OEDEB OF EEFEKENCE. 29 should provide for reducing the number should a trial be- fore all prove impracticable.' The qualifications of referees appointed by a compulsory order are the same as of those appointed by consent.* § 2. Order, Form and Contents. — The form of the order and the manner of entry is the same as in references by con- sent ; ^ the referee may be selected by the parties or by the court ; * if by the parties any number not exceeding five may be appointed ; if by the court one or three.^ The qualifications of referees are the same as in references by con- sent ; ® the court has no authority to direct that the hearing proceed on less than the statutory notice.'' The order should state precisely what is referred. An order referring " this cause " embraces all the issues,* including, in an action for accounting, the right to proceed and take the account without the entry of an interlocutory judgment ; ^ in an action to dissolve a partnership the right to order a dissolution and the appointment of a receiver to take pos- session and dispose of the assets ; ^^ in an action for dower, where the complaint prays, if admeasurement be imprac- ticable, the property may be sold, to try the question of practicability, and in a proper case order a sale." When the parties reside at different places the order may direct that hearings be had at each.''* The special term may 1 Com. PI. Sp. T. 1880, Devlin v. Van Syckel, 33 Super. 694 ; N. T. Mayor, 62 How. 260. Super. 1860, Crosbie v. Leary, 19 2 Ante. § 3, p. 6. Super. 313 ; Sup'm. Ct. 1855, Palm- 3 Ante, pp. 9, 10. er v. Palmer, 13 How. 363; Sup'm. 4 Code Civ. Proc, §§ 1011,1035; Ct. 1874, Mundorf «. Mundorf, 1 Hun, Sup'm. Ct. 1884, Hale v. Swinburne, 41 ; Sup'm. Ct. 1859, Pratt ». Stiles, 17 Abb. N. C. 381. 9 Abb. 150 ; 17 How. 311. "Code Civ. Proc. §. 1035. i»N. Y. Super. 1869, Trufant «. = Ante, p. 9. Merrill, 6 Abb. N. S. 463. ' Sup'm. Ct. 1874, Molirman v. " Sup'm. Ct. 1886, O'Doughertyi;. Bush, 2 Hun, 674. Remington Co. 1 N. Y. St. Rep. 8N. Y. Super. 1849, Renouil v. 533. Harris, 4 Super. 641 ; Sup'm. Ct. Sp. i^ Sup'm. Ct. Sp. T. 1847, Pierce v. T. 1850, Graves v. Blanohard, 4 Voorhees, 3 How. Ill ; Sup'm. Ct How. 300; Sup'm. Ct. 1840, Lee v. 1807, Newland v. West, 2 Johns. Tillotson, 24 Wend. 337. 188; Sup'm. Ct. 1884, O'Brien v. 9N. Y. Super. 1863, McCartan v. Catskill Co. 32 Hun. 636. 30 LAW OF EEFEKEES. modify its order by increasing the number of referees, although the original order has been affirmed by the court of appeals, and no new facts are alleged to have arisen.'^ Motion costs may be allowed on granting the order.^ , § 3. Reviewing tlie Order. — The proper method of review- ing the order is by appeal ; ^ sometimes a motion to set it aside will be entertained.* If the order is wholly void, the remedy is by appeal or refusal to attend before the referee.^ An appeal from the judgment entered on the report does not bring up the order; the appeal must be from the order,^ with- in thirty days after notice of entry ; '^ but where, in a non -ref- erable case an order of reference was made by default, a motion to open the default denied, and an appeal taken from the order of denial, the default was opened and the order of reference vacated, although the reference had proceeded to a final report against the objection of the defendant.^ The order affects a substantial right, and so may be re- viewed by the court of appeals.^ That court will not re- view the discretion of the court below in granting or refus- ing a reference in a referable case,''" but the general term may.^^ Such discretion will rarely be exercised in a refer- 1 Com. PI. 1880, Devlin v. Mayor, » Ct. App. 1870, Townsend i>. Hen- 9 Daly, 334 ; 90 N. Y. 689. drlcks, 40 How. 143 ; Ct. App. 1870, 2 1872, V,^atson v. Gardiner, 50 N. Kain u. Delano, 11 Abb. K. S. 39 ; Y. 671. 1873, Welsh v. Darragh, 52 N. Y. 3 Sup'm. Ct. 1803, Coombs •;;. 590 ; 1877, Martin v. Windsor Hotel Wyckoff, 1 Cai. 147 ; N. Y. Super. Co. 70 N. Y. 101 ; Sup'm. Ct. 1877, 1866, Brown a.Brown, 27 Super. 688. Hoffman ■». Spalding, 12 Hun, 83 ; < Sup'm. Ct. 1874, Brink «. Re- Sup'm. Ct. 1865, Dickinsons. Mitch- publio Co. 2 T & C. 550. ell, 19 Abb. 286. 6 1878, Baird «. Mayor, 74 N. Y. w 1873, Welsh v. Darragh, 52 N. 383 ; Sup'm. Ct. Sp. T. 1853, Haner Y. 590 ; 1877, Martin «. Windsor «. Bliss, 7 How. 246. Co. 70 N. Y. 101 ; 1881, Harrington « Sup'm. Ct. 1870, Terry v. Mc- v. Bruce, 84 N. Y. 103. Neil, 58 Barb. 241 ; 1878, Baird «. " 1877, Martin v. Windsor Co. 70 Mayor, 74 N. Y. 383 ; Com. PI. N. Y. 101 ; Com. PI. 1867, Turner 1886, McCall «. Moschowitz, 1 N. Y. «. Taylor, 2 Daly, 278 ; Sup'm. Ct. St. Rep. 99 ; Sup'm. Ct. 1879, El- 1874, Williams v. Allen, 48 How. liot n. Lewis, 16 Hun, 581. 357 ; Sup'm. Ct. 1879, Elliott i\ Lew- 'Code Civ. Proc. § 1351. is, 16 Hun, 581; Sup'm. Ct. 1877, ^ Sup'm. Ct. 1883, Read v. Lozier, Felt v. Tiffany, 11 Hun, 62 ; Sup'm. 31 Hun, 286. Ct.l874,Flanders B.Odell, 2Hun,664. OBDER OF EEFEEENCE. 31 able case ; ^ nor will the decision of tlie special term that an account is long be often reversed.* Objection to the order must be promptly taken ; proceeding thereunder without objection waives every right, including the right to appeal ; ^ so does excepting to the report ; * but does not waive the objection that the court has no jurisdiction.^ A party who has sworn to a long account, appeared on the motion to refer, and appeared on the trial, waives his right to raise the objection that the cause was not referable;^ all irregularities are waived by proceeding with the reference.'' 1 Com. PI. 1858, Kennedy v. Shel- Brown b. Brown, 27 Super. 688 ; ton, 1 Hilt. 546 ; Sup'm. Ct. 1853, 31 How. 481 ; 1878, Baird v. Mayor, Doan B. Empire Co. 9 How. 69; 74 N. Y. 882; Sup'm. Ct. 1851, Com. PI. 1854, Smith v. Dodd, 3 E. Whalen v. Supervisors, 6 How. 278. D. S. 348; Com. PI. 1865, Hatch «. *^. Y. Super. 1866, Browne. Wolf, 30. How. 65 ; Com. PI. 1856, Brown, 27 Super. 688. Ubsdell B. Root, 1 Hilt. 173 ; N. Y. ^gup-m. ct. 1848, Garoie i>. Shel- Super, 1861, Whittaker v. Destoase, don, 3 Barb. 232. 20 Super. 678 ; Sup'm. Ct. 1883, « Sup'm. Ct. 1833, Bloore v. Pot- Stebbins v. Cowles, 06 How. 38. ter, 9 Wend. 480 ; Sup'm. Ct. 1879, 2 Sup'm. Ct 1874, Williams v. Al- Elliott v. Lewis, 16 Hun, 581. len, 2 Hun, 377 ; N. Y. Super. 1874, ' Sup'm. Ct. 1868, Bucklin ik HossaokB.Heyordahl, 38 Super. 391. Chapin, 35 How. 155; Sup'm. Ct. 3 Sup'm. Ct. Sp. T. 1851, Keator Sp. T. 1848, Garcie t). Sheldon, 3 V. Ulster Co., 7 How. 41 ; Com. PI. Barb. 232; Sup'm. Ct. 1860, Bon- 1856, Ubsdell v. Root, 1 Hilt. 173 ; ner v. McPhail, 31 Barb. 106 ; N. Sup'm. Ct. 1803, Conant «. Wyckoff, Y. Super. Sp. T. 1867, Quin v. 1 Cai. 147 ; N. Y. Super. 1866, Lloyd, 30 Super. 157. 32 LAW OF REFEREES. CHAPTEE VI. GENERAL POWERS AND DUTIES OF REFEREE. Section 1. — Authority of court over referee. Section 2. — Oath of referee. Section 3. — Bringing on the trial. Section 4. — Conduct of the trial. § 1. Authority of Court over Referee. — A referee is the creature of tlie statute and order, and possesses no greater jurisdiction or power than is delegated to him thereby.^ He is always under control of the court, and may be re- moved at its discretion for proper cause ; ** such discretion in removing, or refusing to remove a referee who is in no way impeached will not be reviewed on appeal,^ nor will alleged error in rulings on a trial, though claimed to show bias, be a sufficient cause for removal.* The special term may compel the referee to proceed with the trial of the issues on pain of removal ; ^ in a proper case may stay pro- ceedings before him ; * may in certain cases, and for good reasons, control his acts and proceedings, set aside his re- port, or stay proceedings thereon ; "^ may set aside the report for irregularity, or open the case for re-trial on the ground of surprise, mistake, or newly discovered evidence ; ^ but will review his discretion only in cases of incompetency or impropriety.^ The referee is an officer of the court, and no IN. Y. Super. Sp. T. 1877, Sulli- 20 Johns, 476; Sup'm. Ct. 1831, van 1). Sullivan, 52 How. 453. Grahams v. Norton, 6 Wend. 552. 2 Sup'm. Ct. Sp. T. 1868, Ford 1). 'Com. PI. 1870. Barton b. Her- Ford, 53 Barb. 525. man, 3 Daly, 320 ; 8 Abb. N. S. 399. ^Com. PI. 1851, Perry «. Moore, 3 ^Sup'm. Ct. 1859, Pratt v. Stiles, E. D. S. 33. 9 Abb. 150; 17 How. 211. 4N. Y. Super. Sp. T. 1884, Marie 9N. Y. Super. 1877, Dow «. Dar- v. Garrison, 1 How. N. S. 32. ragh, 43 Super. 81 ; N.Y. Super. Sp. 6 Sup'm. Ct. Sp. T. 1868, Ford «. T. 1884, Marie v. Garrison, 1 How. Ford, 53 Barb. 525. N. S. 32. 6 Sup'm. Ct. 1823, Sudam v. Swart, POWERS AND DUTIES OF EEFEEEE. 33 suit can be brought against him for moneys in his hands as such officer without leave.^ "Where the referee unreasona- bly grants an adjournment, or refuses to proceed with the reference, he may be removed and another appointed ; ^ the special term may set aside any order of the referee that he had no authority to make ; ^ but it will not stay the progress of a trial before him to allow an examination of de- fendant before trial ; ■* it cannot compel him to re-open the case and hear further evidence.^ § 2. Oath, of Referee. — Before proceeding to hear the tes- timony, the referee must be sworn faithfully and fairly to try the issues, and make a just and true report ; ^ the oath must be administered by an officer designated by law.'^ The provisions of Section 1016 relate solely to referees appointed under Sections 1011 to 1015 inclusive, relating to trials without a jury,® and to references under section 1015 of the code of civil procedure ; ' if the referee was sworn before one of the attorneys in the cause, the only effect is that the oath was not taken ; the judgment is not vitiated ; ■"' it is a mere irregularity that is waived by pro- ceeding in the action.''^ Attending and refusing to proceed does not waive the oath.''^ Failure to take the oath will not vitiate a judgment entered on the report of the referee,^^ except when infants are concerned. In such case there can be no waiver.''* 1 Sup'm. Ct. 1864, Higgins v. 9 Com. PI. Sp. T. 1878, Exchange Wright, 43 Barb. 461. Co. v. Early, 4 Abb. N. C. 78. 3 N. Y. Super. 1858, Forrest ii. w Sup'm. Ct. 1882, Katt v. Ger- Forrest, 16 Super, 650. mania Co., 26 Hun, 429. 3 Sup'm. Ct. Sp. T. 1868, Ford c. "Sup'm. Ct. Sp. T. 1851, Keator Ford, 53 Barb. 525. i>. Ulster Co. , 7 How. 41 ; Sup'm. * Sup'm. Ct. Chamb. 1877, Rich- Ct. 1851 , Whalen «. Supervisors, 6 ardson v. McCreery, 1 Abb. N. C. How. 378 ; Com. PI. 1878, Nason v. 355. Luddington, 8 Daly, 149; 56 How. "" N. T. Super. 1877, Dow -o. Dar- 172. ragh, 42 Super. 80. 12 Sup'm. Ct. Sp. T. 1878, Brown- sCode Civ. Proc. § 1016. ing«. Marvin, 5 Abb. N. C. 285. 'Code Civ. Proo. § 843. i^Code Civ. Proc. 721. 8 Com. PL 1878, Nason v. Lud- " Code Civ. Proc. § 1016 ; Com. dington, 8Daly, 149; 56 How. 172 ; PI. Sp. T. 1878, Exchange Co. v. Com. PI. Sp. T. 1878, Exchange Co. Early, 4 Abb. N. C. 78 ; 54 How. V. Early, 4Abb.N.C.78; 54How. 279. 379. 34 LAW OF EEFEKEES. § 3. Bringing on the Trial. — The referee should take no steps until he has received a certified copy of the order of reference ; '^ this is his commission, the sole source of his authority.^ Although it is the better practice, it is not necessary that the order should be served on the opposite party ; he had notice of the application, he is bound to take notice of the decision.^ The referee should fix the time and place of trial ; * if more than one referee is appointed a majority may do so.^ The appointment of hearing should be in writing, but a verbal one is sufficient.^ In actions in the supreme court it is not necessary that the trial should be had in the county where the venue is laid ; '' whether an objection that the trial was had outside the jurisdiction of the court is ever valid, quere ; ^ in one case the objection was held fatal,^ but this would seem to be overruled by the later decision of the court of appeals. The objection is waived if not taken promptly.^" Fourteen days notice of the time and place of trial is a matter of right," unless waived, a shorter notice will not sustain a judgment by de- fault ;^^ but where the objecting party has attended and secured an adjournment, the proceedings will not be set aside because the reference proceeded on two days notice ;^^ the court cannot shorten the notice except as a condition of granting a favor.^* Erroneous statements of the referee as 1 Sup'm. Ct. 1860, Bonner v. Mc- -^est, 2 Johns, 188 ; Sup'm. Ct. Sp. Phail, 31 Barb. 106. T. 1855, Wheeler ... Maitland, 12 2 Sup'm. Ct. 1860, Bonner «. Mc- How. 35; 1879, Blake v. Lyon Co., Phail, 81 Barb. 106 ; Sup'm. Ct. Sp. 77 jj- y. 626 T. 1871, Merrill v. Merrill, 11 Abb. 81379, Blake e. Lyon Co., 77 N. N. S. 74 ; Sup'm. Ct. Sp. T. 1858, y. 626. Billings «. Baker, 6 Abb. 213. a Sup'm. Ct. 1860, Bonner v. Mo. 3 Sup'm. Ct. Sp. T. 1845, Moffatt phail, 31 Barb. 106. ■0. Judd, 1 How. 194. 10 1379, Blake v. Lyon Co., 77 N. ^ Sup'm. Ct. Sp. T. 1859, Sage «. y. egg. Mosher. 17 How. 367; County Ct. nCode Civ. Proo. § 1018 : Sup'm. Otsego Co., 1853, Stephens*. Strong, Ct.l874,Mohrmani'.Bush,2Hun,674. 8 How. 339. laSuD'm. Ct. 1874, Mohrman «. «Code Civ. Proc. § 1026. Bush, 2 Hun, 674. e Sup'm. Ct. Sp. T. 1859, Sage v. iscom. PI. Sp. T. 18)4. Wetter®. Mosher, 17 How. 367; Sup'm. Ct. Sohlieper, 7 Abb: 92; Chancery, Sp. T. 1853, Stephens «. Strong, 8 1833, Hart ». Small, 4 Paige, 288. How. 339. 14 Com. PI. 1870, Leland «. Smith, ' Sup'm. Ct. 1807, Newland «. 3 Daly, 309. POWERS AND DUTY OP EEFEKEE. 35 to time and place of meeting will not excuse the want of at- tendance at the time and place specified in a written notice.^ A party who has appeared by attorney cannot thereafter ap- pear in person.^ If he appears without objection at a place other than that specified in the notice, the irregularity is waived;^ appearing and proceeding without objection is a waiver of insufficient notice.* § 4. Conduct of the Trial. — A trial before a referee of an issue of fact, or an issue of law, is conducted in like manner, the papers to be furnished are the same, and are furnished in like manner as when the trial is by the court without a jury.^ Where more than one referee is appointed all must meet together, and hear all the allegations and proofs of the parties ; but a majority may appoint a time and place for the trial, decide any question that may arise on the trial, sign a report, or settle a case.^ A majority may hold the case for the others to appear.'' The referee must always be present during the examination of witnesses,^ but pro- ceeding without objection in his absence waives the irregu- larity.^ He cannot refuse to proceed upon the ground that the order was improvidently granted ;■"' nor can defendant object on the hearing that the necessary parties have not been served with process,^^ or that the referee has no juris- diction because the order was improperly granted.'^ The referee may dismiss the complaint on the ground that 'it does not state facts sufficient to constitute a cause of 1 Sup'm. Ct. Sp. T. 1859, Sage v. » Code Civ. Proo. § 1018 ; Com. Mosher,l 7 How. 367. PI. 1859, Shultz v. Whitney, 17 How. 2N. Y. Super. 1866, Halsey v. 471; N. Y. Super. 1871, Metcalf v. Carter, 39 Super. 535. Baker, 34 Super. 10 ; 52 N. Y. 649 ; 3 Sup'm. Ct. 1874, Catlin «. Cat- 11 Abb. N. S. 431. lin, 3 Hun. 378. ' n. y. Super. 1871, Metcalf v. 4 Com. PI. Sp. T. 1854, Wetter Baker, 34 Super. 10 ; 53 N. Y. 1). Schlieber, 7 Abb. 92 ; Chancery 649; 11 Abb. N. S.431. 1816, Ex'rs! v. Van Cortlandt, 3 J. w Sup'm. Ct. 1862, People «. Cor- Ch. 342 ; Chancery, 1833, Hart v. telyou, 36 Barb. 164. Small, 4 Paige, 388. " Sup'm. Ct. 1860, Hawkins v. 8 Code Civ. Proc. § 1018. Avery, 33 Barb. 551. 6 Code Civ. Proc. § 1036. « Sup'm. Ct. 1879, Elliot v. Lewis, ' Sup'm. Ct. Sp. T. 1846, Sewall 16 Hun, 581. V. DeForrest, 3 How. 176. 36 LAW OF REFEREES. action ; ' or on plaintiffs failure to appear ; ^ or to proceed with the action ; ^ but judgment absolute should not be or- dered;* may order judgment for plaintiff on the ground that the answer constitutes no defense.^ If plaintiff fails to appear the reference may proceed in his absence.^ If the cause is being tried the second time the referee is bound by the law as laid down by the appellate court in reviewing a previous trial.''' Plaintiff may submit to a non- suit, or a dismissal of his complaint, or his complaint may be dismissed in like manner as on a trial at any time be- fore the case has been finally submitted for decision.^ A non-suit is error if there was evidence sufficient to carry the case to a jury.* To make the decision of a referee in dismissing the complaint equivalent to a non-suit, the motion to dismiss should be decided at, or as of the time the motion was made, and before the final submission of the cause. If the non-suit is granted an exception should be taken, and all the matters made to appear, to secure a review in the court of appeals.^" The order of proof is within the discretion of the referee,^^ and, to some extent, the permitting of leading questions,''^ and the number of witnesses as to character.^^ He cannot disregard the law as laid down by the courts ; ^* nor can he in the absence of one party inspect property, the subject of the action, and 11868, Coffin v. Reynolds, 37 N. Folsom, 27 Super. 43: 1871, Clark- T. 640 : 1873, Schuyler v. Smith, 51 son d. Skidmore, 46 K. Y. 297. N. y. 309 ; 1880, Eaton v. Wills, 83 * Rule 30. N. Y. .576. ^1872, Soofield v. Hernandez, 47 2 Code Civ. Proc. § 1018 ; 1873, N. Y. 313. Morange •». Meigs, 54 N. Y. 307. i''1877, Vanderlip •<;. Keyser, 68 » 1873, Morange v. Meigs, 54 N. N. Y. 443. Y. 207. ^^ Com. PI. 1850, Gibson c. Pear- 4N. Y. Super. 18.52, Salter c. sail, 1 E. D. S. 90. Malcolm, 8 Super. .596. 12 Com. Pi. 18.';4, Brade v. Eay- 51878,SohuylerD.Smith.51]Sr.Y.309. mond, 2 E. D. S. 496; Com. PI. 6 Sup'ra. Ct. 1814, Mclnery v. 1858, Pearson «. Fiske, 3 Hilt, 146. Benedict, 11 Johns. 402 ; County i=* Sup'm. Ct. 1848, Green 1. Brown, Court. 1853, Stephens «. Strong, 8 3 Barb. 119; 1873, Armstrong v. How. 339 ; Sup'm. Ct. Sp. T. 18.52, Ferguson, 54 K Y. 659. "Williams n. Sage, 1 C. K. N. S. 358. " Sup'm. Ct. 1858, Burt 11. Powis, '• N. y. Super. 1866, Bellows -e. 16 How. 289. POWEE AND DUTY OF BEFEBEE. 37 receive explanations thereof from the other party.^ He has no power to strike out a complaint ; ^ nor can he rely upon affidavits brought to him for testimony in the cause ; he himself must take the evidence.^ He cannot strike out the direct examination of a party who refuses to appear for cross examination ; the proper course is to report the facts to the court.* Nor can he strike out a complaint for refu- sal to obey a supoena duces tucem; ^ nor issue a commis- sion to take testimony ; ^ nor order a bill of particulars.'^ When a counter-claim is sustained he may state the ac- count and give judgment for the balance found due ; ^ but where the complaint alleged a co-partnership and a dissolu- lution, an ascertainment of the amount due, for which plaintiff sued, or in the alternative for an accounting, it was held that the action was in assumsit, and that the referee had no right to take an account as in equity.^ Where two actions in different courts were referred to the same referee, who ordered that one should be first tried, and if decided in favor of plaintiff an accounting should be had to deter- mine the amount due, defendant was entitled to an account- ing in both suits.^" Where several actions are brought against the same defendant, and a stipulation that all shall depend on the result of one selected to be tried, in which plaintiff succeeds, defendant can offer evidence only as to the amount of damage in the others." One of several referees cannot be a witness on a trial before them.^^ Par- ties brought in after the trial has begun cannot be com- pelled to accept the referee appointed, or the evidence 1 Sup'm. Ct. Sp. T. 1849, Yale v. ' Sup'm. Ct. 1875, Weller v. Gwmits, 4 How. 353. Weller, 4 Hun, 196. 2 Sup'm. Ct. Sp. T. 1853, Bone- "IS'^'l. Stewart ■d. Drake, 46 N. steel «. Lynde, 8 How. 226, 353. Y. 449. 3 Chancery 1839, Banta ». Banta, ^ Sup'm. Ct. 1870, Short t>. Barry, 3 Edw. Ch. 295. 3 Lans, 143. 4 Sup'm. Ct. 1881, Matter of »" Sup'm. Ct. 1874, Devoe b. Nut- Crooks, 23 Hun, 696. ter, 1 Hun, 713. 5 Sup'm. Ct. Sp. T. 1853, Bone- " Sup'm. Ct. 1858, Houlahan t>. steel V. Lynde, 8 How. 226. R- R- Co. 24 How. 155. 6 N. T. Super.. 1873, Rathbun v. '^ Sup'm. Ct. 1851, Morse ®. Morse, Ingersoll, 34 Super. 311. ^1 ^arb. 510. 38 LAW OP KEFEKEES. taken ; ^ nor in reversing a judgment and ordering a new trial ; nor in substituting one referee for another, can tlie court order the trial to be had on the evidence taken, or direct what evidence shall be admitted.^ Proceeding with the reference is a waiver of objection.^ Where amended pleadings have been served during an adjournment, the issues not being substantially changed, it is discretionary with the referee whether he will begin the trial anew ; * so when a trial has been adjourned for the purpose of allow- ing a reply to a counter-claim.® He may hold the case to enable other necessary parties to be brought in, and where plaintiff refuses, on leave given, to make application there- for, may dismiss the action without prejudice.^ At any time before the report is filed or delivered he may re-open the case and take further evidence,'' of his own motion or on motion of either party ; ^ may enlarge the time for the submission of briefs after the case has been closed.^ In an action for waste the referee may, in his discretion, view the premises, and direct the attorneys to attend accord- ingly.^" Where in an equity case all the issues are re- ferred to hear and determine the mode of procedure is in the discretion of the referee. If after trying the issues he finds an accounting necessary, he may proceed and take the account, or he may order an interlocutory judgment direct- 11880, Woodu. Swift, 81 N.Y.31. S. 513; 1859, Williams o. Hays, 20 2 Sup'm. Ct. 1860, Bissell ^. Ham- N. Y. 58; Sup'm. Ct. 1862, Leitch lin, 13 Abb. 22 ; N. Y. Super. 1886, ». Brothei-son, 25 How. 407 ; 16 Abb. Griffin ii. Miner, 54 Super. 46. 384 ; N. Y. Super. 1877, Dow«. Dar- 3 JSf. Y. Super. 1886, Griffin v. ragh, 43 Super. 80. Miner, 54 Super. 46 ; Sup'm. Ct. 8 Com. PI. 1854, Duguid v. Ogil- 1874, Catlino. Catlin, 2 Hun, 378. vie, 1 Abb. 145; 2 E. D. S. 527; ^Sup'm.Ct. 1869, White «. Smith, Sup'm. Ct. Cir. 1858, Ayrault v. 1 Lans, 469. Sacliett, 17 How. 461 ; Sup'm. Ct. 6187i, White v. Smith, 46 N. Y. 1843, Parker «. French, Lalor Supp. 418. 103; Ct. App. 1867, Fielden s. 61882,Peyser d. Wendt,87 N. Y.333. Lahens, 6 Abb. N. S. 341 ; Com. PI. ' Sup'm. Ct. Cir. 1858, Ayrault v. 1854, Beach v. Raymond, 2 E. D. S. Sackett, 17 How.. 461; Com. PI. 496; N. Y. Super. 1861, Delafield 4). 1854, Duguid «. Ogilvie, 1 Abb. 145; DeGrauw, 32 Super. 1. 2 E. D. S. 527; Com. PI. 1858, Pear- 9 Sup'm.- Ct. Sp. T. 1885, Morri- son V. Fiske, 2 Hilt, 146; Com. P. son «. Lawrence, 3 How. N. S. 72. 1855, Trimble v. Stilwell, 4 E. D. " Code Civ. Proc. 1659. POWER AND DUTY OF REFEREE. 39 ing it to be taken ; ^ he is not obliged to go on and take it himself.^ Where defendant has offered to liquidate dam- ages under section 736 of the Code of Civil Procedure the referee must, if he finds that the damages do not exceed the amount named, ascertain and determine the expense necessarily incurred in preparing for the trial of the ques- tion of damage.^ In an action to reform a contract on the ground of mistake the plaintiff cannot, on failure to prove mistake, have a construction of the contract.* The original minutes of the referee after judgment are his private prop- erty with which the court has nothing to do.^ Where the evidence on the trial of a foreclosure action has been taken by a stenographer the minutes may be ordered to be filed.^ 1 Sup'm. Ct. 1864, Mundorf v. 8 Code Civ. Proo. § 737. Mundorf, 1 Hun, 41; Sup'm. Ct. n887, Oakville Co. •». Double 1856, Palmer v. Palmer, 13 How. Pointed T. Co. 105 N. Y. 658. 368; N. Y. Super. Sp. T. 1879, sgup-jn. ct. 18^2, Horrocks v. Hathaway v. Russell, 45 Super. 539. Thompson, 37 Hun, 144. 2 1874, Mundorf v. Mundorf, 59 « Sup'm. Ct. 1883, Horrocks o. N. Y. 635 ; Sup'm. Ct. 1886, Central Thompson, 37 Hun, 144. T. Co. 0. N.Y. &N.Co. 43 Hun, 603. 40 LAW OF EEFEEEES. CHAPTEE VII. POWERS AND DUTIES ON THE TBIAL. Section 1. — Power to allow adjournments. Srotion 3. — Procuring and taking evidence. Section 3. — Reserving decision on objections to evidence. Seotion 4. — Power to allow amendments. Section 5. — Power to punish for contempt. Section 6. — Motion to dismiss. Section 7. — Requests to find. Section 8. — Jurisdiction over costs. § 1. Power to Allow Adjoumments. — The referee possesses the same power as the court on the trial to grant adjourn- ments.^ They are within his discretion;* the court will rarely interfere therewith ; ^ but it will vacate the order of reference if the referee insists upon granting one of several months to enable him to make a pleasure trip ; * and when the referee refused to adjourn to permit a witness to fulfill a professional engagement, and struck out the evidence previously given by such witness, the order confirming the report of the referee was reversed on appeal.^ He may adjourn from time to time on his own motion when neces- sary, of which necessity he is to judge,^ to enable a party to amend his pleading,'' or to serve a reply.^ Refusal to iCode Civ. Proc. § 1018. sSup'm. Ct. 1881, Matter of 2 1880, Comins o. Hetfleld, 80 N. Crooks, 23 Hun, 696 ; Sup'm. Ct. Y. 261; Sup'm. Ct. 1867, Billings «. 1801, Forbes v. Trary, 2 Johns, Vanderbeck, 15 How. 295 ; Sup'm. Cas. 224. Ct. 1831, Grahams v. Morton, 6 « Sup'm. Ct. 1842, Ex-Parte Rut- Wend. 553. ter, 3 Hill, 464. 3 Sup'm. Ct. Sp. T. 1860, Cooley «. ' Sup'm. Ct. 1869, White v. Smith, Huntington, 16 Abb. 884 n; N. Y. 1 Lans. 469; Sup'm. Ct. 1886, Bul- Super. Sp. T. 1848, Langley v. lock v. Bemis, 40 Hun, 633 ; N. Y. Hickman, 3 Super. 681. Super. Sp. T. 1873, Hochstetter «. * N. Y. Super. 1853, Forrest ». Isaacs, 14 Abb. N. S. 335n. Forrest, 16 Super. 650. « 1871 .White «. Smlth,46 N. Y. 418. POWERS AND DUTIES ON THE TEIAL. 41 begin the trial anew after such reply is served is not error.'' Where each party has put in all the evidence he desires the report of the referee will not be set aside because formal adjournments were not had from day to day.^ He may impose costs as a condition of adjournment,^ but the court cannot, by attachment, compel the payment of such costs ; * He may re-open the cause and fix a day for re-argu- ment, even after he has made up his mind.^ If the terms imposed as a condition of granting an adjournment are not complied with, the opposing party may proceed with the reference ; ^ it is discretionary with the referee whether he will adjourn the trial on account of the absence of a wit- ness ; '' his discretion in imposing terms, means terms with- in his lawful powers. He cannot allow an adjournment on condition that the opposing party have leave to demur.^ § 2. Procuring and Taking Evidence. — A witness may be supoenaed to attend before a referee to testify, and in a proper case, to bring with him a book, document, or other paper, as upon a trial by the court ; ^ the referee has the same power as the court on the trial to compel, by attach- ment, the attendance of a witness, or to punish him for con- tempt for non-attendance, or refusal to be sworn, or to testify.^" The order of proof is in his discretion," so is the permission of leading questions ; ^^ the recalling of a witness 11871, White v. Smith, 46 N. Y. Brotherson, 16 Abb. 384; Sup'm. 418. Ct, 1858, Ayrault v. Sackett, 17 2K. Y. Super. Sp. T. 1859, Ac- How. 507. cessory Transit Co. v. Garrison, 9 « Sup'm. Ct. Sp. T. 1875, Gamble Abb. 141. "• Taylor, 43 How. 375. 3 Sup'm. Ct. 1835, VanRenselaer 'N. Y. Super. Chamb. 1848, V. Fay, 18 Wend. 509 ; Sup'm. Ct. Longley «. Hickman, 3 Super. 681. 1834, Sickles v. Fort, 12 Wend; 199; sgup-m. ct.l 878, Smith v. Rath- Sup'm. Ct. Sp. T. 1843, Butler v. bun, 13 Hun, 47. Bates, 5 Hill, 374 ; Sup'm Ct. 1836, Johnson v. Grey, 6 Cow. 54; Sup'm. ^Code Civ. Proc. § 1017. Ct. 1845, Slocum v. Watkins, 1 Den. wCode Civ. Proe. § 1018. g3;j 11 Com. PI. 1850, Gibson «. Pear- * Sup'm. Ct. Sp. T. 1843, Butler sail, 1 B. D. S. 90. n. Bates, 5 Hill, 374; Sup'm. Ct. 12 Com. PI. 1854, Beach v. Ray- 1836, Johnson v. Grey, 6 Cow. 54. mond, 3 E. D. S. 496 : Com. PI. 6 Sup'm. Ct. 1863, Leitoh «. 1858, Pearson ». Fiske, 3 Hilt. 146. 42 LAW OP EEFEEEES. after lie has been dismissed/ the taking or refusing of tes- timony at any time the cause is before him,^ the number of witnesses as to character,^ or striking out evidence admit- ed without objection ;* but on motion to strike out evidence, the moving party must clearly show such evidence to be incompetent.^ When the proof was that the contract was by parol, and on cross-examination it appeared that it was in writing, the refusal of the referee to strike out the parol proof was held error.^ The credibility of a witness is solely for the referee,'^ but he is bound to give credit to unim- peached testimony.^ He may strike out the testimony of a witness, who, after notice, refuses to appear for further cross-examination ; ^ may, on the trial, strike out the testi- mony taken on commission of a witness whose answer is evasive, irresponsive, or untruthful, or who has not fuUy and fairly answered the questions ; ^^ may strike out testi- mony received under objection before final submission;" may compel a witness to submit to the examination of counsel a memorandum from which he is testifying, under the penalty of having so much of his testimony as rested thereon stricken out.''^ Where a witness refuses to answer on the ground that it would criminate him, the referee should not compel an answer unless he knows that no crime has been committed.^^ The referee has the same power as the jury as to the comparison of signatures to ascertain iCom. PI. 1858, Pearson ». Fiske, 'Sup'm.Ct. 1849, Leach a.Eelsey, 2 Hilt. 146; Com. PI. 1855, Trimble 7 Barb. 466. ». Stilwell, 4 E. D. S. 513. ^ Sup'm. Ct. 1882, Matter of 2N. Y. Super. 1861, Delafleld «. Sohreyer, 63 How. 238 ; 1871, El- DeGrauw, 22 Super. 2 ; 3 Keyes 467 ; wood v. W. TJ. T. Co. 45 N. Y. 549. Sup'm. Ct. 1848, Schemeriiom v. 9 Sup'm. Ct. 1873, Price i>. Wil- Devlin, 1 Code Rep. 28. son,67Barb.9;SeeMatterof Crookes, 3 Sup'm. Ct. 1848, Green v. Brown, 33 Hun, 696. 3 Barb. 119 ; 1873, Armstrong v. w Sup'm. Ct. 1870, Terry v. Mc- Ferguson, 54 N. Y. 659. Neil, 58 Barb. 241. * N. Y. Super. 1866, Goodrich v. " Sup'm. Ct. 1880, Marsh v. Kin- Thompson, 27 Super. 75. ney, 11 Week. Dig. 144. 6N. Y. Super. 1875, Mercer v. 12 gup'm. ct. 1870, Peck v. Lake, Vose, 40 Super. 218. 8 Lans. 136. 6 Ct. App. 1867, Hatch v. Pryor, " Sup'm. Ct. 1857, Fellows v. Wil- 3 Keyes, 441. son, 31 Barb. 162. POWERS AND DUTIES ON THE TEIAL. 43 whicli is genuine.^ If a party refuses to answer on cross- examination a pertinent question, Ms evidence in his own favor may be stricken out, or compulsory process may be used to compel an answer.^ § 3. Reserving Decision on Objections to Evidence. — The party objecting to evidence has a right to an immediate ruling thereon ; ^ to the refusal of such right an exception wiU lie to the referee, or to the court appointing him, and a motion maybe made to strikeout the objectionable testimony;* but if, by consent of parties, or without objection, decision on the objection is reserved, the objecting party has no remedy.^ If the evidence is admissible for any purpose, or against any party, the court is not bound to declare its effect.^ The reservation of a decision on the objection is not erroneous if the testimony was relevant, or not calcu- lated to injure the objecting partyJ The decision may be reserved until the referee makes his report,^ but the practice is objectionable, and should not be followed ;^ it is error to receive improper evidence under objection, although the referee in his report states he has disregarded it ; ^^ so it is to reserve decision until the final submission of the case, then decide as if no objection was made,^^ or to receive evidence 1 N. y. Super. Trial Term, Hunt » Sup'm. Ct. 1856, Tremain v. V. Lawless, 7 Abb. N. C. 113. Rider, 13 How. 148. 2 N. Y. Super. 1860, Bennett ». 9 Sup'm. Ct. 1874, Berrian v. San- Phalon, 19 How. 580. ford, 1 Hun, 635 ; 1871, Sharpe v. sSup'm.Ct. 187o,Lathrop«. Bram- Freeman, 45 N". Y. 802; K. Y. Su- hall, 3 Hun, 394; 1885, Matter of per. 1878, Clussman «. Merkel, 16 Yates, 99 N. Y. 94. Super. 403 ; Snp'm. Ct. 1875, La- * 1885, Matter of Yates, 99 N. Y. throp «. Bramhall, 3 Hun, 394 ; 5 T. 94. & C. 680 ; 64 N. Y. 365. 5 Sup'm. Ct. 1875, Clark v. Don- w Sup'm. Ct. 1849, Allen «. Way, aldson, 5 T. & C. 683 ; 1878, Holden 7 Barb. 585. ®. N. Y. Bank, 73 N. Y. 286; » Sup'm. Ct. 1866. Peck «. Yorks, 1871, Sharp v. Freeman, 45 N. Y. 47 Barb. 131; Sup'm. Ct. 1871, 802. SmHh v. Kobbe, 59 Barb. 389 ; N. 6 Sup'ni. Ct. 1875, Lathrop v. Y. Super. 1858, Clussman ■». Merkel, Bramhali, 3 Hun, 394; 64 N. Y. 16 Super. 403; N. Y. Super. 1856, 865. Brooks v. Christopher, 13 Super. 'N. Y. Super. 1876, Mercer ®. 216; Sup'm. Ct. 1873, Wagener v. Vose, 40 Super. 318. Finch, 65 Barb. 493. 44 LAW OF REFEEEES. apparently, absolutely, really de bene esse, and then reject it in making the report.' Where the referee, after reserving decision, fails to notify the parties how he has ruled on the evidence, the case may be sent back to the referee, or on appeal, the court may, if the evidence was material, treat it as error.^ Testimony so received is to be treated as if received absolutely ; ^ where so received, the referee should, before closing the case, advise the parties of his ruling on the evidence offered, that an exception may seasonably be taken.* To make the error of the referee in reserving de- cision available on appeal an exception must be noted, and a specific ruling and exception had thereon when the case is closed ; ^ where incompetent evidence was received with- out objection through inadvertence, the referee may strike it out on motion of the adverse party.^ Where decision is reserved without objection, and the referee is not asked to pass thereon, and no exception is taken thereto, the ques- tion cannot be reviewed on appeal.''' § 4. Power to allow Amendments. — The referee exercises the same power as the court on the trial of an issue of fact, to allow amendments to the summons, or to the pleadings ; ^ but his power is limited to that exercised by the court on a trial ; ^ he does not possess that of the court at special term.'" He cannot allow an amendment that will change the cause of action or defense ; '' or changing the complaint 1 Sup'm. Ct. 1850, Allen «. "Way, « Code Civ. Proc. §1018. 7 Barb. 583 ; 3 C. R. 243. 9 ct. App. 1867, Melvin v. Wood, 2 Sup'm. Ct. 1874, Berrian ». San- 3 Keyes, 533; 1879, Quimby v. ford, 1 Hun, 625; 1876, Lathrop v. Claflin, 77 N. Y. 270; Sup'm. Ct. Bramhall, 64 N. Y. 365. 1860, Van Ness v. Bush, 22 How. 3 Sup'm. Ct. 1874, Kerslake i). 481; Sup'm. Ct. Sp. T. 1873, Chit- Schoonmaker, 1 Hun, 436 ; 1876, tenango Co. v. Stewart, 67 Barb. Lathrop «. Bramhall, 64 N. Y. 365. 423. ^ Sup'm. Ct. 1873, Berrlan «. San- i° Sup'm. Ct. 1873,Chittenango Co. ford, 1 Hun, 625. v. Stewart, 67 Barb. 423; Sup'm. Ct. 6 N. Y. Super. 1857, Brooks v. Sp. T. 1868, Ford v. Ford, 53 Barb. Christopher, 12 Super. 216. 525. «1873, Armstrong v. Ferguson, » Sup'm. Ct. 1860, "Woodruff v. 54 N. Y. 659. Hurson, 32 Barb. 557 ; Sup'm. Ct. ' 1885, Matter of Yates, 99 N. Y. Sp. T. 1860, Union Bank v. Mott, 18 94- How. 506; Sup'm. Ct. Sp. T. 1851, POWERS AND DUTIES ON THE TRUL. 45 from one to rescind a contract and restore the parties to their previous condition, to one for damages for fraud ; ^ or to change the complaint from one for use and occupation to one for money had and received ; ^ or to change it from one on an account stated to one for damages for breach of contract ; ^ or change the action from one in equity to ejectment ; * nor can he allow an amendment setting up a new cause of action or defense ; ^ nor one setting up the statute of limitations.® After permitting an amendment he has no power to allow a demurrer,'^ or a supplemental pleading.^ He may permit the pleadings to be amended to conform to the proof where it does not substantially change the character of the action or defense ; ^ may dis- regard an immaterial variance between pleading and proof ; *" but the better rule is that the referee should disregard an immaterial variance and leave the court to determine whether the pleadings should be amended to conform to the proof.^' It has been said in many cases that the only Holmes ri. Slooum, 6 How. 217; Sup'm. Ct. 1878, Smith ». Rathbun, 13 Hun, 47. 1 Sup'm. Ct. 1874, Sinclair «. Neil, 1 Hun, 80. 2 Sup'm. Ct. 1876, Joslyn v. Jos- lyn, 9 Hun, 388. 3 Sup'm. Ct. 1878, Wiley «. Brig- ham, 16 Hun, 106. 4 1878, Bockes -o. Lansing, 74 N. Y. 437. 6 1871, Bennett v. Lake, 47 N. Y. 93 ; Sup'm. Ct. 1873, Livermore c. Bainbridge, 14 Abb. N. S. 237 n ; N. Y. Super. 1873, Hochstetter®. Isaacs, 14 Abb. N. S. 235 ; 1885, Price ». Brown, 98 N. Y. 388 ; Sup'm. Ct. Sp. T. 1860, Union Bank ®. Mott, 18 How. 506; 10 Abb. 378; N. Y. Su- per. 1874, Dougherty v. Vallotton, 38 Super. 455; Sup'm. Ct. 1860, Woodruff t. Hurson, 33 Barb. 557 ; Sup'm. Ct. Sp. T. 1868, Ford «. Ford, 35 How. 821 : 53 Barb. 535 ; Bup'm. Ct. 1864, Dimnigan ®. Crummey, 44 Barb. 528 ; Sup'm. Ct. 1859, Johnson i). Mcintosh, 31 Barb. 267; N. Y. Super. 1876, Woodruff V. Dickie, 28 Super. 619. 6 Sup'm. Ct. 1879, Riley v. Cor- win, 17 Hun, 597. ' Sup'm. Ct. 1878, Smith «. Rath- bun, 13 Hun, 47. 8N. Y. Super. 1871, Lyon «. Scott, 34 Super. 41. 9 1879, Chapin v. Dobson, 78 N. Y. 74 ; 1871, Bennett ». Lake, 47 N. Y. 93; N. Y. Super. 1871, Coates «. Donnell, 48 Super. 46. 10 Sup'm. Ct. 1865, Dunnigan v. Crummey, 44 Barb. 538 ; N. Y. Su- per. 1859. Hart v. Hudson, 13 Super. 294; N. Y. Super. 1857, Rogers s. Verona, 14 Super. 417; N. Y. Super. 1854, Cobb V. West, 11 Super. 38; N. Y. Super. 1849, Hawkins t>. Ap- pleby, 4 Super. 431 ; Com. PI. 1854, Parsons v. Suydam, 3 E. D. S. 276. UN. Y. Super. 1857, Hart d. Hud- son, 13 Super. 294. 46 LAW OF EEFEEEES. power the referee has is to allow amendments only to cure an immaterial variance ; ^ he cannot entertain a motion to strike out part of an answer.^ A motion to amend in a case within the referee's power to grant is discretionary, from the decision of which no appeal will lie.-^ It is also discretionary whether he will allow an amendment setting up a technical and dilatory defense ; * or whether he will, on terms, allow an amendment inserting material allega- gations.^ Where an order is made by him allowing an amendment it must be accepted as a whole, the adverse party cannot accept a part and reject a part.^ An amended answer to an amended complaint is not a matter of right where no surprise is shown, and it is not pretended that the facts are materially changed.'' An amendment alleging that an assignment stated to be in writing was by parol and given as security may be allowed ; ^ so may one inserting the word " knowledge " before the word " information " in an answer containing a denial ; ^ so may one that will change the name, but not the character of the action made in the complaint, as when the complaint alleged that de- fendant, as plaintiffs agent, made an agreement with the United States to carry the mails between two stations for a sum named, of which he was to receive a fixed amount, that he had collected the whole amount, but had failed to pay over a certain sum, it was held the referee had authority to allow an amendment alleging that defendant made the con- iSup'm. Ct. 1880, Sinclair v. 13 Hun,47; Sup'm. Ct. 1861, Tiiom- Neill, 1 Hun, 80; Sup'm. Ct. 1868, asson ». Peterson, 32 How. 98. Ford v. Ford, 53 Barb. 535 ; 35 ■• Sup'm. Ct. 1873, Brett r. First How. 331 ; Sup'm. Ct. Chamb. 1860, Soc. 63 Barb. 610. Union Banli ®. Mott, 10 Abb. 373; 5 jgTS. Smitli v. Ratlibun, 75 N. 18 How. 506 ; Sup'm. Ct. 1864, Dun- Y. 123. nigan «. Crummey, 44 Barb. 538; 6 1878, Smith v. Rathbun, 75 N. Sup'm. Ct. 1878, Smitli v. Rathbun, Y. 132. 13 Hun, 47. ' Sup'm. Ct. 1865, Dimnigan v. 2 1864, Smith «. Countrj'man, 30 Crummey, 44 Barb. 528. N". Y. 655. 8 N. Y. Super. 1861, Hoyt 1). Hoyt, 3 Sup'm. Ct. 1860, "Woodruff «. 21 Super. 511. Hurson, 83 Barb. 557; N. Y. Super. 9 1871, Bennett v. Lake, 47 N. Y. 1862, fleoor v. I^aw, 33 Super. 163 ; 93. Sup'm. Ct. 1878, Smith «. Rathbun. POWEKS AND DUTIES ON THE TEIAl. 47 tract for himself and employed plaintiff to do tlie work for a certain per cent, of the contract price.^ An amendment of the pleading to correspond with the proof should be spread upon the record.^ An objection to the amendment of the complaint is waived by the service of an amended answer.* An amendment setting up that one of the de- fendants sued as a partner was not a partner, and that the claim sued on had been paid in part, may be allowed.'* Where in an insurance case the complaint alleges that proper proofs had been furnished, the referee may allow an amendment alleging a waiver of proof.* Where costs are imposed as a condition of granting an amendment accep- tance of costs is a waiver of objection to its allowance.^ Where the evidence plainly shows an accord and satisfac- tion the answer should be amended to include it.'^ The verification may be amended before the referee ; ^ or a new bill of particulars substituted in place of one already served.^ The trial may be suspended to allow an applica- tion to the court for leave to amend. ^^ The power of the referee to allow an amendment adding or striking out the name of a party refers only to parties omitted or added by mistake or otherwise. ^^ He cannot allow an amendment bringing in a party by compulsory process.^^ He may, un- der objection, reserve his decision on a motion to amend until the close of the trial ; ■'^ when decision is so reserved without objection allowance of the amendment in the find- ings is sufficient.^* The propriety of allowing an amend- 1 Sup'm. Ct. 1883, Oregon Co. v. » Ct. App. 1867, Melvin v. Wood, Otis, 27 Hun, 453: 4 Abb. N. 8. 438. 2 Sup'm. Ct. 1877, Ballou v. Par- i« Sup'm. Ct. 1878, Newman o. sons, 11 Hun, 602. Marvin, 12 Hun, 236 ; Sup'm. Ct. 3 N. Y. Super. 1863, Secor ». Law, 1886, Bullock i>. Bemis, 40 Hun, 23 Super. 163. 623. 4 Sup'm. Ct. 1884, Frazer v. Hurst, " Sup'm. Ct. 1878, Newman «. 18 Week. Dig. 390. Marvin, 13 Hun, 336. 5 1880, Grattan «. Met. L. T. Co. 12 Sup'm. Ct. 1878, Newman t. 80 N. Y. 381. Marvin, 13 Hun, 236. 6 1880. Grattan o. Met. L. T. Co. ^1879, Ciiapin v. Dobson, 78 N. 80 N. Y. 381. Y. 74. 'Sup'm. Ct. 1873, Brett c. First "N. Y. Super. 1880, Bean «. Soc. G3 Barb. 610. Edge, 46 Super. 455. 8 1871,Bennett ».Baker,47N. Y.93. 48 LAW OF BEFEEEES. ment on the trial can be reviewed only on appeal from the judgment ; ^ the special term has no authority to inter- fere.^ A different rule has been laid down in some of the cases ; ^ but in Hochstetter v. Isaacs, 14 Abb. N. S. 235, Freedman, J., stated the true rule to be that where the allowance or disallowance of the proposed amendment is in the discretion of the referee the exercise of that discre- tion is not reviewable by the court on motion ; the power of a referee to allow an amendment within the scope of his authority is not exclusive of, but concurrent with that of the court.* § 5. Power to Punish for Contempt. — The referee may pun- ish a witness as for contempt for non-attendance or refusal to be sworn or to testify,^ but he can exercisfe this power only in cases where the referee is to hear and determine ; ^ in references other than for the trial of issues, it seems the facts should be reported to the court.'' It has been held that the authority to punish for disorderly and contemptu- ous conduct pertains solely and exclusively to the court in which it Qccurs in its immediate view and presence. Such power cannot be delegated by the referee to a judge,^ but the better rule is that the court at special term has inherent concurrent power with the referee to punish for contempt.^ As a basis for a motion to the court to punish, the referee should adjudge the party guilty.'''' Where the contempt before IN. Y. Super. 1876, MoPherson «N. Y. Super. 1860, Burnett v. v. Romer, 40 Super. 448 ; N. Y. Phalon, 11 Abb. 157. Super. 1866, Woodruff v. Dickie, 28 ' Sup'm.Ct.l881,Matter of Crooks, Super. 619. 23 Hun, 696. sgup'm. Ct. 1882, Knapp •<;. Few- *N. Y. Super. 1864, Heerdt v. ler, 26 Hun, 200. Wetmore, 25 Super. 697. « Sup'm. Ct. 1868, Ford ». Ford, " N. Y. Super. Chamb. 1860, By- 53 Barb. 525 ; Sup'm. Sp. T. 1860, ass v. Smith, 17 Super. 679 ; N. Y. ' Union Bank b. Mott, 18 How. 506 ; Super. 1860, Burnett v. Phalon, 11 Sup'm: Ct. Sp. T. 1858, Billings v. Abb. 157 ; Sup'm. Ct. 1858, Sully «. Baker, 6 Abb. 213. Jobson, 6 Abb. 317 n ; Compare ■> N. Y. Super. Sp. T. 1873, Hoch- Heerdt 7>. Wetmore above, stetter ®. Isaacs, 14 Abb. N. S. 335 ; lo N. Y. Super. 1864, Heerdt v. Sup'm. Ct. 1878, Wiley v. Brigham, Wetmore, 25 Super. 697. 16 Hun, 106 ; Sup'm. Ct. 1886, Bui- " Ct. App. 1869, Sudlow ■». Knox, look «. Bemis, 40 Hun, 628. 7 Abb. N. S. 411. •6 Code Civ. Proc. § 1018. POWEES AND DUTIES ON THE TBIAl. 49 the referee is shown, the facts may be certified to the court for action.^ On proceedings to pxinish, a reference may be ordered to take testimony without filing interrogatories ;^ It is not contempt to refuse to leave books with the referee when the order only requires the party to produce them. Whether the referee could compel him to leave the books was not decided.^ A party is entitled to reasonable time to obey an order before he can be punished for refusal.* Be- fore an attachment can issue against a party for failure to comply with a judgment, a reference may be had to ascer- tain precisely what the party is required to do.^ On a mo- tion to punish a party for violating an injunction, the referee should take proof and determine the loss caused by such violation.® "Where the contempt consists in refusal to answer a question the referee should pass upon and require the question to be answered before an attachment is moved for.''' When application is made to the court for attach- ment, or for an order to show cause why one should not issue against a party disobeying an order made by a referee, •it is based upon a special report by the referee, or upon affidavit.^ The attachment will issue when the affidavits in relation to the alleged contempt are conflicting, to enable the complainant to compel the attendance of witnesses to prove the facts,^ but the order should not adjudge that de- fendant is guilty of contempt ; it should merely direct the issuing of the attachment, or only declare that there ap- pears to be probable cause for the issue thereof ; ^° an or- 1 Ct. App. 1869, Sudlow v. Knox, C. 397 ; 1867, Pitt v. Davidson, 37 7 Abb. N. S. 411. N. Y. 335. 2 Sup'm. Ct. 1874, People v. Alex- « Sup'm. Ct. 1874, Harteau v. ander, 3 Hun, 311 ; 5 T. & C. 397; Deer Park Co. 1 Hun, 493. 1867, Pitt i>. Davidson, 37 N. Y. ' Chancery, 1841, Forbes ». Mee- 335. ker, 3 Edw. Ch. 453. 8 Ct. App. 1869, Sudlow ». Knox, » N. Y. Super. 1851, Praser e. 7 Abb. N. S. 411. Phelps, 6 Super. 683 ; N. Y. Super. * N. Y. Super. 1864, Heerdt v. 1850, Matter of Smethurst, 4 Super. Wetmore, 35 Super. 697. 734. 5 Sup'm. Ct. 1876, Sutton v. Davis, » Chancery, 1834, McCredie «. 6 Hun, 337 ; Sup'm. Ct. 1874, Peo- Senior. 4 Paige, 378. ple«. Alexander, 3 Hun, 311; 5 T. & w Chancery, 1834, McCredie v. Senior, 4 Paige, 378. 50 LAW OF BEPEEEES. der to show cause instead of an attachment may be is- sued.^ § 6. Motion to Dismiss. — The referee may dismiss the complaint for an entire failure of proof.^ Such dismissal may be on the merits when an important point submitted by consent is decided against the plaintiff, and the latter fails to proceed with the trial after due notice.^ To make the motion to dismiss equivalent to a non-suit, a distinct ruling must be had thereon at the time, or as of the time the motion was made, and before the final submission of the whole case, and for the purpose of review, an exception taken thereto.* Where, at the close of the evidence, a mo- tion is made to dismiss, and no disposition made thereof, and subsequently the referee makes a report in ordinary form dismissing the complaint, it is not a non-suit, but a disposition on the merits.^ When the complaint is dismissed on plaintiff's failure to appear, judgment absolute should not be rendered against him.^ Where a motion for a non- suit is made, an immediate decision may be required, and to a refusal so to decide, an exception will lie. The pro- ceedings on the motion may be made part of the case and reviewed on appeal, if a proper exception has been taken.'' § 7. Requests to Find. — Before the cause is finally sub- mitted, or within such time thereafter as the referee may allow ; either party may submit in writing a statement of the facts which he deems established by the evidence, and of the rulings on questions of law which he desires the referee to make ; the statement must be in the form of dis- tinct propositions of fact, or law, or both separately stated, numbered, and so written and arranged that the referee can conveniently pass upon it. At or before the time when the 1 Chancery, 1842, Albany Bank v. * 1877, Van Derlip ii. Keyser, 68 Schermerhorn, 9 Paige, 373 ; Code N. Y. 443. Civ. Proc. § 2369. 51^77^ Van Derlip «. Keyser, 68 2N. Y. Super. 1875, Dougherty?). N. Y. 448. Valloton, 38 Super. 455 ; Code Civ. « N. Y. Super. 1853, Salter ®. Mal- Proe. § 1018 ; Rule 30. colm, 8 Super. 596. 3 Sup'm. Ct. t878,Wilkins i>. Buck, ' 1877, Van Derlip «. Keyser. 68 13 Hun, 124. N. Y. 443 ; Sup'm. Ct. 1886,"Pritoh- ard V. Hlrt, 89 Hun, 378. POWERS AND DUTIES ON THE TEIAL. 51 decision or report is rendered, ttie referee must note in the margin his action on each proposition thereof, and file, or return to the attorney the statement so noted. ^ To raise a question of law on facts not found, there must be a request and a refusal to find ; ^ without these the facts can not be reviewed on appeal.^ The request must be made before the delivery of the report ; one made thereafter on the settlement of the case is unavailable ; * must be in the form of distinct propositions of fact, not evidence of facts,^ and must point out the precise finding desired.^ Where it contains more than one proposition, it may be denied if either be errone- ous.''' A request to find that -defendant is entitled to a re- port in his favor, is of no avail ; ^ nor is a request to find a fact as to which no evidence was offered.^ A party cannot compel the referee to accept such findings and conclusions as he may frame and allow exceptions to such findings and conclusions.^" Where requests were made and submit- ed to, but mislaid by the referee until after the making and delivery of the report, and were then passed upon, it was held they w^ere properly inserted in the case on appeal.^^ Where evidence, though incompetent, is admitted, whether with or without objection, a party may insist on the facts shown thereby.'^ " Not found " and " not found as stated," are sufficient as refusals to find.^^ A refusal to make a find- 1 Code Civ. Proe. § 1023. ^ Sup'm. Ct. 1887, Friedman v. 2N. y. Super. 1875, Kemple «. Bierman, 43 Hun, 387. Darrow, 39 Super, 447 ; 1873, « 1880, Grant v. Morse, 23 N. Y. Meacham «. Darrow, 54 N. Y. 317 ; 333. Sup'm. Ct. 1884, Drury v. Wigg, 19 n881,Davis «.Leopold,87]Sr.Y.620. Week. Dig. 417; Com. PI. 1886, 8 1871, Kedmond ». Liverpool Co. Loonam 'v. Meyers, 1 N. Y. St. Rep. 46 N. Y. 578. 37g_ 9N. Y. Super. 1877, Wilson v. 3 Sup'm. Ct. 1861, Murray v. Bar- Knapp, 43 Super. 25. ney, 34 Barb. 336. "> 1873, Lefler v. Field, 47 N. Y. * 1881, Gormerly v. MoGlynn, 84 407. N. Y. 384 ; Sup'm. Ct. 1874, Excel- " Sup'm. Ct. 1887, Friedman v. sior Co. V . Lacy, 3 Hun, 111 ; Sup'm. Bierman, 43 Hun, 387. Ct. 1885, Forsythe v. Rickenbrode, ^' 1868, Flora ■». Carbrau, 38 N. 33 Week. Dig. 470; Sup'm. Ct. Sp. Y. 111. T. 1879, Morgans. Bosworth, 1 Law. 1^1881, Davis i). Leopold, 87 N. Y. Bui. 35. 630. 52 LAW OF REFEREES. ing when requested raises a question of law,^ which is available on appeal if the fact was conclusively proven.^ No exception lies to a failure to find where no request therefor was made,^ otherwise if there was evidence to the contrary.* A party is bound by a finding made at his re- quest.^ Since the adoption of section 1023 of the Code of Civil Procedure and the amendment of Rule 32, the report of the referee cannot be sent back for further findings of fact and conclusions of law. The former practice in this respect is abrogated thereby.^ § 8. Jurisdiction over Costs. — The referee has jurisdiction to award costs/ laut only where all the issues are referred.^ They are in his discretion, where all the issues are referred in actions in equity ; ^ including actions for foreclosure,^" and actions to redeem personal property ;" but when he was by the terms of the order to hear and determine the issues and report to the court the allowances for costs, the report as to costs is a recommendation only.^^ He has jur- isdiction over costs when he has to determine whether the action could have been brought in a justice's court,'' but he has none where the action could have been so brought,'* 1 Code Civ. Proc. 993 ; 1881, Gor- 10 Barb. 147; Sup'm. Ct. Sp. T. merly v. McGlynn, 84 N. Y. 384 ; 1850, Graves v. Blanchard, 4 How. 1880, James ». Cowing, 83 N. Y. 300; Com. PI. Sp. T. 1878, Morgan 449. V. Stevens, 6 Abb. N. C. 356. 21875, Smitli v. Glens Palls Co., ^Ct. App. 1867, Barker v. White, 62N. Y. 85. 3 Keyes, 617; 5 Abb. N. S. 356; 31864, Ashley «. Marshall, 39 N. Sup'm. Ct. Sp. T. 1856, Mesereau «. Y. 494. Ryerss, 13 How. 300 ; Sup'm. Ct. * 1874, Andrews v. Raymond, 58 1850, Graves v. Blanchard, 4 How. N. Y. 676. 300; Sup'm. Ct. 1851, Luddlngton 5 1874, East River Co. b. Gove, v. Taft, 10 Barb. 447. 57 N. Y. 597. >» Sup'm. Ct. 1870, Stevens i\ Ve- "ISSO, James v. Cowing, 82 N. riane, 3 Lans. 90. Y. 449 ; 1881, Gormerly ». McGlynn, " Sup'm. Ct. 1859, Pratt v. Stiles, 84 N. Y. 284; Sup'm. Ct. 1885, 17 How. 211. Gardiner v. Schwab, 34 Hun, 582. " Sup'm. Ct. S. T. 1883, Pierson v. "' Code Civ. Proc. §1018. Drexel, 11 Abb. N. C. 150. » Ct. App. 1867, Barker «. "White is Sup'm. Ct. 1859, Gilliland r>. 3 Keyes, 617; 5 Abb. N. S. 134; Campbell, 18 Hun, 177. Sup'm. Ct. 1851, Luddlngton s. Taft, "Sup'm. Ct. 1883, Burdick v. POWERS AND DUTIES ON THE TEIAL. 53 nor has lie authority to award them against an executor or administrator personally/ nor when the right thereto de- pends on facts not proven on the trial.^ Hale, 13 Abb. N. C. 60; 1871, Tul- Campbell, 18 How. 177; Sup'm. Ct. ler V. Couch, 47 N. Y. 89. Sp. T. Mesereau v. Ryerss, 13 How. 1 Sup'm. Ct. 1875, Bailey ». Ber- 300; Sup'm. Ct. 1865, Tilman v. gen, 5 Hun, 555. Keane, 1 Abb. N. S. 33. 2 Sup'm. Ct. 1859, Gilliland v. 54 LAW OF BEFEBEES. CHAPTEE VIII. PBOCEEDINGS SUBSEQUENT TO TEIAl. Section 1. — Report, form and contents. Section 2. — Delivering or filing report. Section 3. — Fees o£ referee. Section 4. — When power of referee ceases. Section 5. — Setting aside report on motion. Section 6. — Costs and adjustment. Section 7. — Entering judgment. Section 8. — Excepting to the report. Section 9. — Making and settling case. Section 10. — Making and settling bill of exceptions. § 1, Report, Form and Contents. — The report should con- tain the title of the action, should be addressed to the court, should recite the substance, but not a copy of the order and state the appearances.^ If the action is in equity and an account has been taken, the report may consist of two parts, the body and the schedules, the body containing the facts and conclusions, and referring to the schedules for more detailed information.'^ It must state separately the facts found and the conclusions of law, and direct the judgment to be entered thereon. If costs are discretionary must award, or deny costs ; if costs are awarded the report must state to whom.^ Where more than one referee has been ap- pointed, all must meet to prepare it ; * if no two agree, one subsequently signed by two separately, or on conference without the presence of, or notice to the third is irregular ; ^ 11 Barb. Ch. Pr. (548.) Sup'm. Ct. Sp. T. 1845, Clark v. 3 1 Barb. Ch. Pr. (548.) Prisbie, 1 How. 98. 3 Code Civ. Proc. §. 1023. bn. Y. Super. 1871, Townsend v. ^N. Y. Super. 1871, Townsend v. Glens Falls Co. 33 Super. 130; 10 Glens Falls Co. 33 Super. 130 ; Abb. N. S. 277. PROCEEDINGS SUBSEQUENT TO TKIAl. 55 a report properly made is , sufficient if signed by a majority.' The cause is within the power of the referee until the report is delivered or filed ; until then he may change his opinion or re-open the case for further evidence.^ It must conform to the order of reference.^ The right to separate findings of fact and conclusions of law is a substantial one,* but may be waived.^ If not waived the report and judgment entered thereon may be set aside for irregularity.^ It must rest on facts warranting the findings distinctly stated ; '' the find- ings should be of facts, not evidence of facts f the particu- lars that go to make up the general conclusions are unnec- essary ; * but when the action involves various dealings between the parties, the report must contain a sufiicient statement of the accounts to enable the court to determine the correctness thereof.'" Only such facts as enter into and form the basis of the decision are required ; it is not necessary to negative in express terms any others.'' When the report is in favor of the plaintiff, a finding on the facts 1 Code Civ. Proc. § 1026. 2 Sup'm. Ct. Cir. 1858, Ayrault v. Sackett, 17 How. 461 ; Sup'm. Ct. Sp. T. 1860, Kissam v. Hamilton, 20 How. 369 ; Com. PI. 1854, Du- guid V. Ogilvie, 3 B. T>. S. 527. 3 Sup'm. Ct. Sp. T. 1860, Taalis 1). Schmidt, 19 How. 413. * Sup'm. Ct. 1875, Gove v. Ham- mond, 48 How. 385; 1871, Van Slyek V. Hyatt. 46 N. Y. 259 ; N. Y. Super. 1852, Church v. Erben, 6 Super. 691 ; Sup'm. Ct. 1869, Man- ley «. Ins. Co. 1 Lans. 20; 1856, Johnson ■v. Whltlock, 13 N. Y. 344; Sup'm. Ct. 1881, Ricketts v. Wes- sels, 12 Week. Dig. 379. 5 1864, Smith v. Coe, 29 N. Y. 666. 6 Sup'm. Ct. Sp. T. 1865, Wright B. Sanders, 28 How. 395. ' Sup'm. Ct. 1874, Spooner v. Le- fevre, 2 T. & C. 666; Sup'm. Ct. 1869, Armstrong ii. Bicknell, 2 Lans. 216; 1861, Smith v. Devlin, 23 N. Y. 363; Sup'm. Ct. 1861, Bucking- ham 1}. Payne, 36 Barb. 81. !> Sup'm. Ct. 1861, Buckingham V. Pajme, 36 Barb. 81; Ct. App. 1867, Wiltsie ». Eadie, 4 Abb. N. S. 393 ; 1875, Quiney v. White, 63 N. Y. 370 ; N. Y. Super. Sp. T. 1860, Lane i). Borst, 28 Super. 609 ; 1855, Grisoone i). Mayor, 13 N. Y. 586 ; Sup'm. Ct. 1873, Jarvis v. Jarvis, 66 Barb. 381 ; Sup'm. Ct. 1875, Avery V. Foley, 4 Hun, 415; Sup'm. Ct. 1879, Dorlon i). Merritt, 18 Hun, 27; 1877, Potter «.Carpentor,71 N. Y. 74 ; 1883, Davis v. Leopold, 87 N. Y. 620. 9N. Y. Super. 1877, Wilson i>. Knapp, 43 Super. 75; Sup'm. Ct. 1875, Avery ii. Foley, 4 Hun, 415; Sup'm. Ct. 1879, Dolan v. Burnett, 18 Hun, 37 ; 1860, Grant i>. Morse, 22 N. Y. 333. w 1880, Biglie v. Pinkney, 80 N. Y. 636 ; Sup'm. Ct. 1874, Spooner i>. Lefevre, 2 T. & C. 666. 11 Sup'm. Ct. 1875, Gove v. Ham- 56 LAW OF BEFEBEES. of the defense or counterclaim is not required.- The find- ings must must be within the issues, and cover all material facts in issue,- but only issues admitted, or as to which evi- dence was given ; ^ they must be sufficiently full to justify the conclusions of law,* and as explicit and distinct as the special verdict of a jury.^ Neither evidence, argument nor comment has any legitimate place in the findings of fact or conclusions of law.* An opinion of the referee referring argumentatively and in a general way to the facts and con- clusions arrived at by him is not such a report as the law contemplates ; " one that wholly ignores the principal issue in the action cannot be sustained'; ^ evidence of a witness who died during an adjournment had by c&nsent after the direct examination was finished, cannot be disregarded or rejected.' The report must be based on the evidence, not upon the referee's inspection and view of the premises in question.^" It is error to deliver duplicates, one to each party, but the judgment entered thereon will not be set aside therefor.^^ When the referee delivered two reports, one general, stating a specific sum due, and the other spe- cific, containing findings of fact and conclusions of law, the amount found due being the same in each, the general re- port was disregarded.^^ Where increased damages are given mond, 48 How. 385; 1873, Quincy ». 1855. Ingraham «. Gilbert, 20 Barb. Young, 53 N. Y. 504; Sup'm. Ct. 151. 1864, Nelson «. Ingersoll, 27 How. 1; * 1878, Field®. Field, 73 N. Y. 588. N. Y. Super. 1870, Andrew v. "Whit- ^ Sup'm. Ct. 1861, Buckingham v. lock, 32 Super. 623 ; 1875, Quincy ®. Payne, 36 Barb. 81. White, 63 N. Y. 370 ; 1881, Stevens « 1876, Glaucius o. Black, 50 N. «. Mayor, 84 N. Y. 296. Y. 145. ^ Sup'm. Ct. 1864, Nelson «!. In- 'Ct. App. 1856, Mills ®. Thursby, ' gersoll, 27 How. 1 ; Sup'm. Ct. 1854, 12 How. 417. Patterson v. Graves, 11 How. 91; » gup'm. Ct. 1869, Collins®. Clark, Sup'm. Ct. 1867, Sermont ®. Baetjer, 54 Barb. 184. 49 Barb. 362. 9 Ct. of Err. 1844, Forrest ®. Kis- 2N. Y. Super. 1861, Saokett ®. sam, 7 Hill, 468. N. Y. Co. 21 Super. 328 ; Ct. App. i» 1878,Claflini'.Meyer,75N. Y.260. 1867, Wiltsie ®. Eadie, 4 Abb. N. S. " N. Y. Super. Sp. T. 1867, Currie 393 ; Sup'm. Ct. Sp. T. 1852, Van v. Cowles, 30 Super. 3. Steenburgh ®. Hoffman, 6 How. 492. 12 ]sf. y. Super. 1864, Niles v. Bat- 3 Sup'm. Ct. 1854, Patterson v. tershall, 25 Super. 146; 18 Abb. Graves, 11 How. 91 ; Sup'm. Ct. 161 ; 27 How. 381. PROCEEDINGS SUBSEQUENT TO TKIAL. 57 by statute, the referee must specify the amount for single and direct judgment for the increased damages.^ The referee must draw the inferences warranted by the evidence, and say, in explicit language, what it requires and implies as matter of fact.^ In finding performance of a contract, it is not necessary to find how it was performed.^ A general finding is controlled by a special finding of fact ; * a find- ing of fact contrary to admissions in the pleadings is erron- eous, though sustained by the evidence ; ^ a finding that a corporation duly accepted a bill of exchange is a finding that its ofiicers were duly authorized to accept the same.^ A report that the evidence leaves the mind in doubt, therefore the complaint is dismissed, is insufficient.''' A finding that the assignor had no actual design to defraud, but intended to apply his property to the payment of his debts, is equivalent to a finding that an assignment was made in good faith ; ^ one that plaintiff has failed to prove facts to sustain his complaint, is a conclusion that the complaint should be dismissed ; ^ one that defendant's servant drove his mas- ter's wagon violently, negligently, carelessly, and with great force and violence against plaintiff's carriage imports simply negligence, not wilful injury ; ^° where the parties stipulate in open court that the referee need not find facts, but might state generally his conclusions, and the referee reports that plaintiff ought not to maintain his action, it will be pre- sumed he has found for defendant on all the issues ; " when a finding that defendant was guilty of negligence is not necessary, it is sufficient if it appear as a conclusion of law.i2 To sustain a finding of fact there must be enough 1 Code Civ. Proc. § 1020. ' Sup'm. Ct. 1876, Bradley v. Mc- 2 Sup'm Ct. 1867, Voorhies «. Laughlin, 8 Hun, 545. Voorhies, 50 Barb. 119. » 1868, Casey «.James,37 N.T. 608. 3 Sup'm. Ct. 1867, Sermont v. " Sup'm. Ct. 1875, Gove «. Ham- Baetjer, 49 Barb. 363. mond, 48 How. 385. M882, Phelps v. Visoher, 50 N. " 1874,Metcalf v. Baker, 57 N. Y. Y 69 ■ 1879, Bennett «. Berdan, 76 663. -[^ Y 386 "Sup'm. Ct. 1873, Smith v. Row- 5 Sup'm. Ct. 1877, Ballou v. Par- ley, 66 Barb. 503. sons, 11 Hun, 602. ^^ 1876, Sherman v. Hudson River 6N. Y. Super. 1859, Farmers' Co. 64 N. Y. 354. / Bank. v. Empire Co. 10 Abb. 47. 58 LAW OP EEFEREES. evidence to carry the case to the jury ; ^ the testimony of a single witness, though contradicted by that of four others, will be sufficient,^ but the referee has no right to disregard the evidence of both parties, and make an independent find- ing.^ While he has a right to find a witness mistaken, he cannot deem the testimony of an uncontradicted witness false and perjured, and infer the truth to be contrary to what the witness has stated.* A finding in express terms of a conclusion of law is not in all cases essential, where it results necessarily from the facts found. ^ A finding of fact justified by the evidence, will be assumed in support af a conclusion of law,^ unless injustice would be done thereby f one authorized by the evidence will be assumed in aid of a general finding,^ unless a request therefor was refused.' The code has made no distinction between the reports on the trial of the issues at law, or in equity.^" Where a com- plete determination of the rights of the parties requires an account to be taken, the referee may proceed and take the account, or he may order an interlocutory decree to be entered, declaring the rights of the parties and directing an account to be taken, or such other proceedings had as the case requires ; " the former is the better practice as afford- ing opportunity for a speedy review of the report on the issues, but is not a matter of right.^^ The report in such 11870, Putnam v. Hutobell, 43 9 1871, Meyer B. Amldon, 45 N. N. Y. 106. Y. 169. 2 Sup'm. Ct. 1866, Wright v. i"CodeCiv.Proc.§1022; Sup'm.Ct. Saunders, 65 Barb. 214. 1856,Palmer ti.Palmer,13 How, 363. 3ISr. y. Super. 1865, Heim i). "Sup'm. Ct. 1874, Mundorf v. Link, 52 Super. 547. Mundorf," 1 Hun, 41 ; Sup'm. Ct. 4 1871, Fordham i). Smith, 46 N. 1856, Palmer i). Palmer, 13 How. Y. 683. 363 ; N. Y. Super. 1869, Trufant i>. B 1876, Cagger v. Lansing, 64 N. Merrill, 37 How. 531 ; N. Y. Super. Y. 417. Sp. T. 1879, Hathaway «. Russell, B 1881, Parker i). Baxter, 86 N. Y. 45 Super. 538. 586; 1864, Ashley v. Marshall, 39 12 n. y. Super. Sp. T. 1879, N. Y. 494. . Hathaway ». Russell, 45 Super. 'N. Y. Super. 1861, Heroy v. 538; Sup'm. Ct. 1856, Palmer v. Kerr, 21 Super. 194. Palmer, 13 How. 363 ; Sup'm. Ct. « Sup'm. Ct. 1863, Union Bank «. Sp. T. 1853, Bantes -v. Brady, 8 Mott, 39 Barb. 180; 1871, Oberland- How. 216; Sup'm. Ct. 1846, Central er ». Spieas, 45 N. Y. 175. T. Co. v. N. Y. & N. Co. 42 Hun, 603 ; PROCEEDINGS SUBSEQUENT TO TRIAL. 59 case sliould declare the rights of the parties, the manner of enforcing them, and if it directs an account, should state how the account should be taken. ^ If an account is directed the manner of taking should be stated,^ although merely directing, an account will be sufficient. In such case it will be presumed it is to be taken in accordance with the old chancery rules.^ The referee must award ordinary costs, and if awarded, the re- port must specify to whom.* When no request as to costs is made, and none are awarded, the case cannot be sent back for a finding in regard thereto on the certificate of the referee that he intended to award them to plaintiff.^ After the referee has made his report he cannot proceed and take the account ; he is functus officio, and cannot act again without the order of the court. ^ If where a counterclaim is interposed, the referee finds defendants claim is equal to plaintiffs demand, he must order judgment for the defend- ant ; if less, for plaintiff for the balance ; if in excess, for the excess, or for so much as is due the defendant.'' Where a counterclaim for affirmative relief is established, judgment therefor must be ordered ; ^ where defendant has offered to liquidate damages conditionally under section 736 of the Code of Civil Procedure, the referee must, if he finds that damages do not exceed the amount named ascertain and determine the expense necessarily incurred in preparing for the trial of the question of damages.' In an action by a private person for a penalty or forfeiture given by statute, the referee may award to the plaintiff as damages the whole sum, or such part thereof as he deems proportionate to the N. Y. Super. 1863, MoCartan v. per. 1851, Wiggin ». Gans, 6 Super. Van Syckel, 33 Super. 694. 646 ; Sup'm. Ct. 1874, Mundorf «. 1 N. Y. Super. 1880, Hathaway Mundorf, 1 Hun, 41. «. Russell, 46 Super. 103 ; Sup'm. < Code Civ. Proc. § 1033. Ct. 1874, Mundorf i>. Mundorf, 1 6 Sup'm. Ct. 1886, First Nat. 41 Hun, ; see 59 N. Y. 635 ; N. Y. Bank «. Levy, 41 Hun, 461. Super. 1869, Trufant v. Merrill, 37 ^ Sup'm. Ct. 1874, Mundorf v. How. 531. Mundorf, 1 Hun, 41. N. Y. Super. 2 N. Y. Super. 1880, Hathaway v. 18C9, Trufaut «. Merrill, 37 How. Russell, 46 Super. 103. ' Code Civ. Proc. § 503. 3 N. Y. Super. 1880, Hathaway v. * Code Civ. Proc. § 504. Russell, 46 Super. 103; N. Y. Su- ^Code Civ. Proc. § 737. 60 LAW OF BEFEBEES. offense.'' In a replevin suit the report must fix the value of the chattel or give reason for failure so to do.^ Where judgment is rendered on the pleadings no findings of fact are required.^ When on the trial the complaint is dis- missed on plaintiff's proof, the referee may report that he dis- missed the complaint on plaintiffs own showing, and direct the entry of judgment of dismissal.* If plaintiff does not appear on the trial, the referee should report the fact, and his decision of a dismissal of the complaint.^ He may make an amended report while sojourning abroad.* The report is the property of neither party ; either may use it to obtain such judgment as the issiies, evidence, and report warrant.'' Before it is confirmed and judgment entered thereon, the successful party obtains no vested right there- to. Until entry of judgment it is subject to the power of the court, and to any act of the legislature affecting the remedy.^ § 2. Delivering or Filing Report. — The report must be de- livered or filed within sixty days after the cause is finally submitted. If not so delivered or filed the reference may be terminated on notice by either party, the action proceed as if no reference had been ordered, and the referee forfeits his fees.^ The right to terminate for failure to deliver or file the report within the sixty days is absolute,'" the time to report may be extended by order of the court,-'^ or by stipu- lation of the parties ; '^ the sixty days do not begin to run until the time for submitting briefs has passed,^^ and where iCode Civ. Proc. § 1898. sCode Civ. Proc. § 1019. 2 Code Civ. Proc. §§ 1726 ; 1727. i» Ct. App. 1870, Gregory «.Cryder, 3 1880, Eaton u. Welles, 83 N. Y. 10 Abb. N. S. 289. 576; N. Y. Super. 1886, Martin u. nCom. PI. 1866, Theisselin o. Smith, 53 Super. 277. Eossett, 3 Abb. N. S. 54; N. Y. ^N. Y. Super. 1874, Bishop «. Super. Sp.T. 1866, Halseyi). Carter, Empire Co. 37 Super. 13. 39 Super. 535. 5N. Y. Super. 1852, Salter «. 12 1874, Ballou D. Parsons, 55 N. Malcolm, 8 Super, 596. y. 673; Sup'm. Ct. Sp. T. 1863, 6 Sup'm. Ct. 1873, Cooley v. Deck- Foster v. Bryan, 16 Abb. 396 ; 26 er, 47 How. 188. ' How. 164. 'Sup'm. Ct. 1866, Sutherland ii. wsup'm.Ct. Sp. T. 1886, Morrison Rose, 47 Barb. 144. 5. Lawrence, 3 How. N. S. 72. "Sup'm. Ct. 1873, Lowenthal v. Mayor, 61 Barb. 511. PEOCEEDINGS SUBSEQUENT TO TRIAL. 61 the attorneys by letter proposed a future day for hearing, but fixed no time for the decision, it was held that the sixty days began to run from the day fixed for the hearing.'' Where the time has been indefinitely extended by stipula- tion in open court, the time to report does not begin to run until the extension is terminated by notice or by order.^ That counsel has neglected to leave with the referee, the papers used on the trial, is no excuse for not filing the report within sixty days.^ The right to terminate may be exercised by either party,* but a party who has appeared by attorney cannot give the notice ; ^ nor can one at whose request the report was kept off the files ; ^ nor can it be given after the report is filed, although the case has been sent back for further findings.''' Failure to give the notice until after the report is filed, is a waiver of the right.^ Any notice distinctly informing the opposite party of an election to end the reference is sufficient,^ and terminates all further right of the referee to proceed.^" To prevent termination by notice, the report must be actually delivered or filed ; an offer to deliver on payment of the fees is insufficient.^^ A notice after the sixty days, and before the report is filed, terminates the authority of the referee.^* The words " shall forfeit his fees," and the words " the reference must proceed as if no reference had been directed," are imperative. ^'^ This section does not apply to a reference of a disputed iSup'm. Ct. 1875, Richards v. sgup-nj. ct. 1864, Mantles t. Bloom, 5 Hun. 183. Myle-, 26 How. 409. 2 1874, Ballou v. Parsons, 55 N. » Ct. App. 1870, Gregory v. Cry- Y. 673 ; Com. PI. 1866, Thiesselin c. der, 10 Abb. N. 8. 289 ; Sup'm. Ct. Rossett, 3 Abb. N. S. 54. 1864, Niies v. Maynard, 28 How. 3 Ct. App. 1870, Gregory v. Cryder, 390. 10 Abb. N. S. 289. w Sup'm. Ct. Sp. T. 1873, Ballou 4 Sup'm. Ct. 1875, Richards ii. ■».' Parsons, 67 Barb. 19 ; Ct. App. Bloom, 5 Hun, 182; Ct. App. 1870, 1870, Gregorys. Cryder, 10 Abb. N. Gregory v. Cryder, 10 Abb. N. S. S. 289. 289. 11 1885, Little v. Lynch, 99 N. Y. 5]Sr. Y. Super. 1866, Halsey c. 113; Sup'm. Ct. 1880, Phipps v. Carter, 29 Super. 583. Carman, 23 Hun, 150 ; 84 N. Y. 650. 6 Sup'm. Ct. 1886, Dwyer v. Hoff- 12 Sup'm. Ct. Sp. T. 1863, Living- man, 39 Hun, 360. ston «. Gidney, 25 How. 1. 'Sup'm. Ct. 1879, Parker v. Bax- i^ Sup'm. Ct. 1864, Niles v. May- ter, 19 Hun, 410. nard, 28 How. 390. 62 LAW OP BEFEEEES. claim against an executor or administrator.* The report should be delivered to the successful party ; if delivered to the unsuccessful one, the court will order him to file it within a certain time, and if not so filed, that the referee make a new report.^ The referee is not bound to deliver or file his report until his fees are paid.^ There is no limi- tation of his power to make a valid report after the sixty days have expired, if neither party has taken steps to termi- nate the reference.* Where, after the referee has made and signed, but not delivered or filed his report, he consents to have re-argument, but does not make or file a new report within sixty days after such re-argument, he cannot, after notice of termination make a valid delivery of the report already made and signed.^ § 3. Fees of Referee. — The compensation of a referee is fixed by statute at six dollars for each day spent in the business of the reference. A smaller sum may be pre- scribed by the order of reference, or a greater one may be fixed by written agreement between the parties at or before the beginning of the hearing.^ The agreement must be in writing, must be made before the trial or hearing has be- gun, must fix the rate, and must be signed by the parties or their attorneys ; '' an agreement made after the beginning of the trial is invalid ; ^ so is one entered on the minutes of the referee, but not signed ; ^ the former rule to the contrary iSup'm. Ct. Sp. T. 1864, God- « Code Civ. Proo. § 3396. ding v. Porter, 17 Abb. 374. ' Code Civ. Proc. § 3296 ; Sup'm. 2 Com. PI. 1852, Riciiards v. Al- ct. 1868, Chase c. James. 16 Hun, len, 11 N. Y. Leg. Obs. 159. 14. Marks ». Citv of Buffalo. 87 N. 3Com. PI. 1879, Fischer «. Raab, y. 184; 1879, First Nat. Bank ». 58 How. 221 ; 1880, Geib ii. Topping, Tamajo, 77 N. T. 476. 88 N. Y. 46. 8 sup-nj. ct. 1878, Chaser. James, ^ Sup'm. Ct. Sp. T. 1863, Foster ig g^j, 14 «. Bryan, 16 Abb. 396; Com. PI. 91879, First Nat. Bank v. Tam- 1866, Theisselin «. Rossett, 8 Abb. ajo. 77 N. Y 476- Sup'm Ct N. S. 54; Sup'm. Ct. 1864, Mantles 1878, chase v. James', 16 Hun 14- ^ Myle, 26 How. 409; Sup'm. Ct. gup'm. Ct. 1883, Greenwood .. Marl 1863, Livingston .). Gidney, 25 How. ^in, 39 Hun, 99; 1881, Marks v. "'■ City of Buffalo, 87 N. Y. 184 • N 6 23 Sup'm. Ct. 1863, Leitoh v. y. Super. Sp. T. 1880, Rust «. Hau- Brotherson, 25 How. 407. gelt, 8 Abb. N. C. 148. PEOCEEDINGS SUBSEQUENT TO TKIAL. 63 has been abrogated by the Code of Civil Procedure, and the decisions thereunder.'^ A stipulation for a fixed sum for each hearing does not extend to days on which no hearing was had, nor meeting or appearance before the referee, the parties having given him notice of postponement.^ If the parties refuse to make an agreement, and the referee is unwilling to proceed at the statutory rate, he must decline the refer- ence ; ^ if he refuses to do either, the court may remove him and appoint another in his stead.* A receiver has no power to make such agreement.^ In the absence of allega- tions of fraud the court has no control over the stipulation ; ® it is not the employer of the referee, and has no responsi- bility for his fees.''' In the absence of an express stipula- tion, the attorney is not liable therefor,^ but where the attorney has agreed to pay he will be held to his promise,^ which may be enforced by action thereon ; ^^ if, in such action he recovers it must be under the statute, not on a quantum meruit}^ The cause of action is assignable.^^ An agreement between the parties that each will pay one-half the fees may be enforced by action. ^^ Before proceeding with the hearing the referee may require that his com- pensation shall be made reasonably certain ; ■** while he might require it to be paid in advance, or the court could order them deposited, such a course could be adopted only under peculiar and unusual circumstances.^^ 1 Sup'm. Cfc 1883, Greenwood ». Y. 45 ; 1880, Bonynge ». Field, 81 Marvin, 29 Hun, 99. N. Y. 160; Sup'm. Ct. Sp. T. 1845, 2 1887, Mead ». Tuckerman, 105 Howell -o. Klnsey, 1 How. 105. N. Y. 557. " Com. PI. 1881, Dinkel «. Wehle, 3 Com. PI. 1878, Devlin c. Mayor, 11 Abb. N. C. 124 ; 63 How. 298. 7 Daly, 466. *" Ct. App. 1859, Judson ». Gray, ■* Sup'm. Ct 1878, Ellsworth «. 17 How. 289. Brown, 16 Hun, 1; 56 How. 337; "Com. PI. 1883, Riddle ®. Cram, Com. PI. 1878, Devlin ». Mayor, 7 10 Daly, 401. Daly, 466. ^ Ct. App. 1859, Disosway v. Wi- 5 Sup'm. Ct. 1882, People «. Con- nant, 33 How. 460. tinentalCo. 15 Week. Dig. 569. wgup-m. Ct. Sp. T. 1881, Buck 6 1881, Marks v. City of Buffalo, v. Fowler, 61 How. 153 ; Com. PI. 87 N. Y. 184. • Sp. T. 1880, Bloodgood «. Blood- ' Sup'm. Ct. 1882, Matter of Con- good, 59 How. 43. tinental Co. 27 Hun, 524. " 1880,FisoherD.Raab,81]Sr.Y.235. 8 1854, Judson v. Gray, 11 N. Y. is Sup'm. Ct. 1878, Ellsworth v. 408 ; 1880, Gelb ». Topping, 83 N. Brown, 16 Hunl. 64 LAW OF BEFEKEES. One against whom a reference is directed cannot be re- quired to pay in advance. If the referee persists in pro- ceeding under such conditions his report will be vacated and a new referee appointed on terms.' The referee has a lien on the report for his fees and is not bound to file or deliver it until they are paid ; ^ the court has no power to compel the successful party to pay them and take up the report,^ but it may make an order that upon his failure so to do, the unsuccessful party may, and enter judgment thereon without costs,* and may, in a wife's action for di- vorce, compel the husband to furnish means to take up a report in her favor.^ Where the referee is ordered to take and state the accounts of an officer of the court, the order may provide that the fees shall be paid out of the fund,^ but a receiver will not be ordered to pay the fees of a ref- eree appointed on the petition of a former receiver for pay- ment of his compensation,''' nor can such receiver be or- dered to pay those of a referee to take proofs touching the compensation of a receiver, until the report of the referee on the accounting is filed.^ If the prevailing party refuses to take up the report the referee may file it and sue for his fees ; ^ if there is a dispute as to the amount they must be taxed ; *" if the time spent is questioned it must be supported by the affidavit of the referee ; " his certificate is insuffi- cient. -"^ Time spent in the consideration of the case, and drawing the report is spent in the business of the refer- 1 Sup'm. Ct. 1881, Armstrong v. ' Sup'm. Ct. 1882, Matter of Con- Cummings, 4 Law Bui. 4. tinental Co. 24 Hun. 524. 2 Com. PI. Sp. T. 1877, Devlin ®. 8Sup'm. Ct. 1882, Clapp ®. Clapp, Mayor, 54 How. 64; Com. PI. 1879, 38 Hnn, 540. Fischer «. Raab, 58 How. 221 ; 1880, 9 1885, Little v. Lynch, 99 N. Y. Geib V. Topping, 83 N. Y. 46 ; 1885, 112. ■ Little ■!). Lynch, 99 N. Y. 112. w Sup'm. Ct. Chamb. 1859, Rich- 3 1880, Geib «. Topping, 83 N. Y. mond v. Hamilton, 9 Abb. 71 n ; 46. 1880, Grib v. Topping, 83 N. Y. 46. 4 Sup'm. Ct. Chamb. 1859, Rich- "N. Y. Super. 1873, Brown v. mond V. Hamilton, 9 Abb 71 n. "Windmuller, 36 Super. 75 ; Com. PI. 6 Com. PI. Sp. T. 1885, Early v. Sp. T. 1859, Shultz v. Whitney, 9 Early, 2 How. N. S. 289. Abb. 71; 17 How. 471. « 1883, Att'y-Gen. v. Continental la n. y. Super. 1873, Brown ». Co. 93 N. Y. 45. Windmuller, 36 Super. 75. PROCEEDINGS SUBSEQUENT TO TRIAL. 65 ence.^ The aflSidavit must show what time was spent in the hearing, and what in examining the case, and drawing the report.^ No charge can be made for adjournments where the stipulation provides that the referee shall receive twenty dollars per day for each hearing ; the adjournments having been arranged by counsel, and notice thereof given to the referee, there being no appearance before him;^ nor can a charge be made for the services of a third person who took evidence in the absence of the referee.* In the ab- sence of an agreement, the court cannot allow more than the statutory fees,^ nor can such increased rate be given as an allowance for services.^ The affidavit to support the fees paid must affirmatively show that the time spent would make the sum named at the legal rate.'' Where two actions are tried before the same referee at the same time and the same disposition is made in each, one-half the legal fees are taxable in each.^ In the absence of any provision of law to the contrary, the fees of a referee to carry a judgment into effect may be taxed by the court.^ While the court has the power, it will not order the fees of a referee, whose du- ties relate to a receivership, his claims or accounts, to be paid out of the fund until his report on the accounting is filed.''" The referee may appeal from an order made in an action that deprives him of a part of his fees," but on such 1 Sup'm. Ct. Sp. T. 1879, Her- « Sup'm. Ct. 1874, Innes v. Pur- sehell V. Rogers, 2 Law Bui. 14 ; N. cell, 2 T. & C. 538 ; 1879, First Nat. Y. Super. 1873, Brown v. "Wind- Bank v. Tamajo, 77 N. Y. 476. muUer, 36 Super. 75. 7 1872, Watson v. Gardiner, 50 2 N. Y. Super. 1873, Brown v. ]sr. Y. 671. Windmuller, 36 Super. 75. scom. PI. Sp. T. 1883, Byrne «. 3 1887, Mead v. Tuckerman, 105 ^^^^^^ g j^aw Bui. 56; Sup'm. Ct. N- Y. 557. 1878, Colton v. Simmons, 14 Hun. 4 Com. PI. Sp. T. 1859, Sehultz ^g i>. "Whitney, 9 Abb. 71; N. Y. Su- ' „ , ^^ looi tt v, ..* i=r .n„., \r ^ i« -D 1 o4 o 9 Sup'm. Ct. 1881, Hobart B. Ho- per. 1871, Metoalf .. Baker, 31 Su- ^^^^_ P^ ^^^ ^g^.' ^^^ ^^ ^^^^^ ^''com. PI. Sp. T. 1859, Shultz .. ^^"""^ "• ^'^'''' ^ ^^^^' ^^S- Whitney, 9 Abb. 71 ; 17 How. 471 ; " S"P'"- t!*- 1885, Clapp -d. Clapp, Sup'm. Ct. 1878, Chase v. James, 16 38 Hun, 540. Hun, 14 ; 1882, Sohloemer v. Schloe- " Sup'm. Ct. 1881, Hobart v. Ho- mer, 49 N. Y. 82 ; 1879, First Nat. bart, 23 Hun, 484. Bank v. Tamajo, 77 N. Y. 476. 66 LAW OF KEFEEEES. appeal tlie burden is on him to show affirmatively that they were improperly taxed.'' Fees on an interlocutory refer- ence are a proper disbursement to be allowed to a prevail- ing party in his costs,^ so are rent, light and fuel where the sittings are had at a place other than the referee's office.^ The party who procures a reference ,to take and state an account is liable for the fees where no final determination is made.* An agreement that the referee shall have a first lien on the judgment for his fees disqualifies him from settling the case, and avoids the order of reference.^ § 4. When the Power of Referee Ceases. — The order of reference is not affected by the death of one party and the substitution of another. The pleadings and all other pro- ceedings remain valid and operative ; ^ nor does the death of a referee appointed on motion in a referable case avoid the order,''' but the rule is otherwise where the referee was appointed by consent ; ^ nor does the appointment of the referee as a justice of the supreme court. The reference may be resumed after the term has expired ; ^ but it does termi- nate by the making and filing or delivery of his report. Thereafter, where the issues have been referred, he has only to perform the ministerial duty of settling the case.''" It is not terminated by an order allowing an amendment of iSup'm. Ct. 1881, Hobart ». Ho- 9 Com. PL 1871, Sehemerhoru s. bart, 23 Hun, 484. Wood, 4 Daly, 158; Sup'm. Ct. 1880, 2 Sup'm. Ct. 1875, Pitkin v. Cool- Countryman i}. Norton, 21 Hun, 17. ey, 5 Hun, 48. i" Com. PI. 1876, Devlin e. Mayor, 3 Sup'm. Ct. 1834, Bailey ii. Han- 6 Daly, 486; 54 How. 11 ; Sup'm. ford, 10 Wend. 622. Ct. 1859, Pratt v. Stiles, 17 How. 4 Ct. App. 1859, Judson ii. Gray, 211 ; Sup'm. Ct. Sp. T. 1861, Shean- 17 How. 289. nan ■b. Justice, 22 How. 241 ; N. T. 5 1883, Leonard v. Mulry, 93 N. Super. Sp. T. 1862, Niles i). Price, Y. 392. 23 How. 473 ; Sup'm. Ct. 1867, 6 Sup'm. Ct. 1873, Chittenango Leffler v. Field, 33 How. 385 ; N. Y. Co. V. Stewart, 67 Barb. 423 ; 1871, Super. 1869, Trufant i>. Merrill, 37 Moore «. Hamilton, 44 N. Y. 666. How. 531 ; Sup'm. Ct. 1864, Cooper ' Com. PI. 1880, Devlin v. Mayor, ■». Bowles, 42 Barb. 87 ; Sup'm. Ct. 9 Daly, 334 ; 62 How. 163. 1867, Vorhis v. Vorhis, 50 Barb. 119: 8 Com. PI 1880, Devlin v. Mayor, Sup'm. Ct. 1864, Nelson v. Inger- 9 Daly, 334. soil, 27 How. 1. PROCEEDINGS SUBSEQUENT TO TEUL. 67 the pleadings, unless so stated in the order/ but is by no- tice of election to end the reference because the report is not filed or delivered within sixty days after the cause is finally submitted.^ While a reference was pending in an action against the city of New York, the legislature passed an act providing that no judgment except on an issue of law should be entered save by verdict of a jury ; held, the reference terminated when the act became a law.^ § 5. Setting aside the Report on Motion. — While the proper method of reviewing the proceedings before a referee to hear and determine is by appeal from the judgment entered on the report, the court may, on motion at special term, in a proper case, and for sufficient cause, set aside the report and the judgment entered thereon.* Any irregularity on the part of the referee that has not been waived by the parties may be so corrected.^ Proceeding with the trial after knowledge of irregularity or misconduct is a waiver ; ^ but the failure to act promptly may be excused.'^ Where irregularity or bias is shown, the court will not stop to in- quire whether or not it has afi'ected the decision. The re- port will be set aside and the order of reference vacated where there is opportunity of imputing bias, though none be shown ; ^ even though the integrity of the referee is un- 1 Sup'm. Ct. 1876, Kiersted v. Ct. 1885, Burrows v. Dickinson, 35 Orange Co. 54 How. 29. Hun, 493 ; Sup'm. Ct. 1883, Carroll 2 Ct. App. 1870, Gregory v. Cryder, «. Lufkin, 29 Hun, 17 ; N. Y. Super. 10 Abb. N. S. 289. 1871, Metcalf ». Baker, 34 Super. 10. 3 Sup'm. Ct. 1873, Lowenthal v. ' Sup'm. Ct. 1884, Greenwood v. Mayor, 61 Barb. 511. Marvin, 29 Hun, 99 ; Sup'm. Ct. ^ Sup'm. Ct. 1885, Burrows v. 1885, Burrows v. Dickinson, 35 Dickinson, 35 Hun, 492 : 1883, Hun, 492. Leonard v. Mulry, 93 N. Y. 392. 8 Sup'm. Ct. Sp. T. 1851, Dorlon 6 Sup'm. Ct. 1878, Fulmer v. Pul- v. Lewis, 9 How. 1 ; Sup'm. Ct. Sp. mer, 6 "Week. Dig. 22 ; Sup'm. Ct. T. 1849, Yale v. Gwlnlts, 4 How. Sp. T. 1851, Dorlon «. Lewis, 9 253; Sup'm. Ct. 1883, Carroll ». How. 1 ; Sup'm. Ct. 1849, Yale v. Lufkin, 39 Hun, 17 ; N. Y. Super. Gwinits, 4 How. 253; Sup'm. Ct. 1871, Gray v. Fisk, 43 How. 135; Sp. T. 1855, Roosa v. Saugerties Sup'm. Ct. Sp. T. 1873, Livermore Co. 12 How. 297. «. Bainbridge, 44 How. 357 ; Sup'm. 6 N. Y. Super. 1856, McPherson Ct. 1873, Stebbins «. Brown, 65 V. Romer, 40 Super. 448 ; Sup'm. Barb. 272. 68 LAW OF EEFEBEES. questioned/ and no wrong has been proven.^ It will be done as a matter of public policy where the referee has promised to decide first in favor of one party and then of the other, though there is no suspicion of the integrity of the referee.^ A like order will be made where, after hi« appointment, he has accepted a retainer from either party.* A motion to set aside for fraud and collusion will be de- nied unless the evidence would be sufficient to maintain an action for that purpose ; ^ impropriety must be proved, not surmised.^ The court alone can determine whether there are any relations between the plaintiff, or his assignor, and the referee that make it improper for him to hear and decide the caused It will set aside the report where, dur- ing the progress of the trial, the referee examined machin- ery, the subject of the action, and received explanations thereof from plaintiff's witnesses in the absence of defend- ant ; ^ so where, after the evidence was closed and the case submitted, the referee wrote an opinion in favor of defend- ant, showed it to plaintiff, who persuaded him to alter his decision ; ^ or where, after the case is finally submitted, the referee, after trying in vain to get a stipulation for fees largely in excess of the statutory rate, finally delivered the report upon receiving a bond and mortgage for the amount of such excessive fees ; ^^ or where, after the case was closed, and after final submission, he advised one of the parties to compromise, suggesting terms ; " or where, upon consulta- tion, three referees were unable to agree, but subsequently iSup'm. Ct. Sp. T. 1851, Dorlon Fiske, 33 Super. 484; 42 How, 135; V. Lewis, 9 How. 1. 13 Abb. N. S. 213. 2 Sup'm. Ct. 1883, Greenwood i). ' 1878, Baird b. Mayor, 74 N. Y. Marvin, 29 Hun, 99; Sup'm. Ct. Sp. 383. T. 1855, Roosa ■». Saugerties Co. 13 » Sup'm. Ct. Sp. T. 1849, Yale v. How. 397 : Sup'm. Ct. 1883, Carroll Gwinits, 4 How. 258. V. Lufkin, 29 How. 17. 9 Sup'm. Ct. 1851, Dorlon v. Lew- s Sup'm. Ct. Sp. T. 1855, Roosa is, 9 How. 1. V. Saugerties Co. 13 How. 297. i" Sup'm. Ct. 1883, Greenwood v. * Sup'm. Ct. 1873, Stebbins v. Marvin, 29 Hun, 99. Brown, 65 Barb. 271. " Sup'm. Ct. 1873, Livermoro i). 6 Sup'm. Ct. Sp. T. 1859, Acces- Bainbridge, 14 Abb. N. S. 237 ; 47 eory Co. v. Garrison, 18 How. 1. How. 350. •iN. Y. Super. 1871, Gray ®. PROCEEDINGS SUBSEQUENT TO TRIAL. 69 a report was drawn up and signed by two separately.^ Where during tlie progress of the trial, the referee impor- tuned the unsuccessful party for aid in securing a political appointment, the report was set aside and the reference vacated.^ A like order was made where each of two refer- ees in different actions is acting as referee in the other ; ^ so where the circumstances created a suspicion of improper conduct.* The report will not be set aside for misconduct with the unsuccessful party ; ® nor because the judge who signed an order of reference entered by consent was a rela- tive of one' of the parties ; ^ nor simply because the referee has expressed himself against the .character of the action." Where misconduct is the ground of the motion the burden of proof is on the moving party.^ The motion to set aside for irregularity cannot be made after judgment is entered.^ A motion to set aside a report directing an interlocutory judgment, and for a new trial on exceptions may be made at general term ; ^^ from the order made thereon an appeal will lie to the Court of Appeals.^' Such motion should be made before proceeding with the reference under the inter- locutory decree.''^ It may be made without taking an ap- peal from the judgment ; but in that case proceedings un- der the decree are not stayed.^^ The general term may allow the appellant to withdraw the notice of appeal, and make a motion for a new trial on payment of costs.''* An 1 N. T. Super. 1870, Townsend v. » Sup'm. Ct. Sp. T. 1882, Don- Glens Falls Co. 10 Abb. N. S. 277. nelly i). Donnelly, 63 How. 481 ; N. 2 Sup'm. Ct. 1885, Burrows v. Y. Super. 1871, Gray v. Fiske, 12 Dickinson, 35 Hun, 492. Abb. N. S. 313. 3 Sup'm. Ct. 1883, Carroll v. Luf- " N. Y. Super. 1876, McPherson kin, 29 Hun, 17. «. Eomer, 40 Super. 448. 4 Sup'm. Ct. 1877, Harlem Bank i" Code Civ. Proc. § 1001 ; 1875, 1). Todd, 4 Week. Dig. 74. Johnson ». Youngs, 65 N. Y. 599. » N. Y. Super. 1871, Gray v. » 1875, Johnson «. Youngs, 65 N. Fiske, 43 How. 135 ; Sup'm. Ct. Y. 599. Chamb. 1888, Gilbert v. Hotohkiss, 12 gup'm. Ct. 1874, Church ■». Daily Reg. Jan 2, 1883. Kidd, 3 Hun, 354. 6 Sup'm. Ct. 1879, Bell v. Ver- is gup^m. Ct. 1877, Bennett ». Aus- noy, 18 Hun, 135. tin, 10 Hun, 451. ' Sup'm. Ct. Sp. T. 1882, Don- " Sup'm. Ct. 1875, Douglas ». nelly v. Donnelly, 63 How. 481. Douglas, 5 Hun, 140. 70 LAW OF EEFEKEES. offer by one of the parties, in the presence of the other, to be responsible to the referee for a compensation in excess of the statutory rate, which is at once rejected, does not disqualify the referee from acting.'' The court, on motion at special term, may set aside any order the referee had no authority to make ; ^ may set aside the report for irregu- larity, surprise or newly discovered evidence ; ^ or for any cause for which the verdict of a jury would be set aside.* After an action in equity has been heard and determined, and no award of costs made, the case cannot be sent back for a determination as to costs.^ Where the report has been set aside for an irregularity that has been cured, the court, in sending back the cause for a re-hearing, may direct that the evidence taken on the first trial be used on the second.^ § 6. Costs and Adjustment. — Costs may be adjusted on notice, and the amount thereof inserted in the judgment ; '' or the amount thereof may be inserted in the judgment be- fore taxation, and notice of re-adjustment given.^ The clerk cannot refuse to tax the costs on entering judgment on the ground that the report was irregularly obtained.^ If the fees of the referee are disputed, they must be sustained by his affidavit ; ^^ his certificate-is insufficient.'^ The affi- davit must show what time was spent in the hearing, 1 Com. PI. Sp. T. 1877, Devlin v. ' N. Y. Super. 1849, Renouil n. Major, 54 How. 64. Harris, 4 Super. 641 ; Ct. App. 1866, - Sup'm. Ct. Sp. T. 1868, Ford d. Cotes «. Smith, 31 How. 146 ; 29 Ford, 53 Barb. 525. How. 326. 3 N. y. Super. Sp. T. 1879, Hath- ** Ct. App. 1866, Cotes u. Smith, away d. Russell, 45 Super. 103 ; 31 How. 146. Sup'm. Ct. 1859, Pratt v. Stiles, 17 « Sup'm. Ct. 1873, Ballou n. Par- How. 211 ; Sup'm. Ct. 1858, Bishop sons, 67 Barb. 19 ; 55 N. T. 678. ?). Main, 17 How. 162; Sup'm. Ct. i»N. Y. Super. 1873, Browns. Sp.T.1857,Peck«.Yorks,14How.416. Windmuller, 36 Super. 75; 14 Abb. ^ Supm.Ct.l873,Livermore«.Bain- N. S. 359; Com. PI. Sp. T. 1859, bridge, 44 How. 357. Shultz 'c. Whitney, 9 Abb. 71 ; 17 6 Sup'm. Ct. 1886, Bank b. Levy, How. 471. 41 Hun, 461; See Gardiner B.Schwab, » N. Y. Super. 1873, Brown v. 34 Hun, 582. Windmuller, 36 Super. 75 ; 14 Abb. « 1878, Roberts v. White, 73 N. N. S. 359. y. 375. PROCEEDINGS SUBSEQUENT TO TRIAL. 71 in examining the case, and in drawing the report.^ No charge can be made for adjournments arranged by counsel, and notice thereof given to the referee, there being no appearance before him, and the stipulation providing only for time spent in the hearing.^ In the absence of a stipulation the court can allow only the statutory fee ; ^ nor can it make an allowance to the referee for services.* The affidavit must show that the time spent would make the sum charged at the statutory or agreed rate ; ^ must show that the time charged for was necessarily employed.^ Fees of a referee on an interlocutory reference are a proper dis- bursement to be allowed the prevailing party in his costs ;" so are rent, light and fuel where the sittings are held at a place other than the referee's office.^ Stenographer's fees are not, save by stipulation of the party .^ In difficult and extraordinary cases an additional allowance may be grant- ed ; ^° application therefor must be made before final costs are adjusted,^^ to the court appointing the referee, on notice and affidavits.'^ The moving papers must show such facts as will enable the court to form its own opinion of the 1 N. Y. Super. 1873, Brown v. » Sup'm. Ct. 1834, Bailey v. Han- WindmuUer, 36 Super. 75 ; 14 Abb. ford, 10 Wend. 632. N. S. 859 ; Sup'm. Ct. Sp. T. 1879, 9 Sup'm. Ct. 1878, Colton -o. Sira- Hersohell «. Rogers, 3 Law. Bui. mens, 14 Hun, 75; 1881, Marks v. 15. Buffalo, 87 N. Y. 184 ; N. Y. Super. " 1887, Mead -c. Tuckerman, 105 1881, Newhall v. Appleton, 4 Law N. Y. 557. Bui. 5 ; Com. PI. Sp. T. 1883, Byrne 3 Com. PI. Sp. T. 1859, Shultz «. ii. Groot, 5 Law Bui. 56. Whitney, 9 Abb. 71 ; 17 How. 471 ; "Code Civ. Proo. § 3353. Sup'm. Ct. 1878, Chase v. James, 16 " Rule 44; 1866, Clarke «. Roeh- Hun, 14 ; 1872, Sohloemer v. Schloe- ester, 34 N. Y. 355 ; Sup'm. Ct. mer, 49 N. Y. 83; 1879, First Nat. 1885, Jones d. Wakefield, 21 Week. Bank v. Tamajo, 77 N. Y. 470. Dig. 387. 4 Sup'm. Ct. 1874, Innis B. Pur- 12 Sup'm. Ct. Sp. T. 1850, Howe ®. cell, 3 T. & C. 538 ; 1879, First Nat. Muir, 4 How. 352 ; Sup'm. Ct. Sp. Bank «. Tamajo, 77 N. Y. 476. T. 1853, Osborne 1). Betts, 8 How. 6 Watson ». Gardiner, 50 N. Y. 31; Sup'm. Ct. Sp. T. 1858, Maini). 671. Pope, 16 How. 271 ; Sup'm. Ct. 6 N. Y. Super. 1873, Brown v. 1885, Bear «. Am. Rapid Tel. Co. 36 Windmuller, 36 Super. 75 ; 14 Abb. Hun, 400 ; N. Y. Super. 1867, Gorl N. S. 359. "■ Smith, 29 Super. 563 ; 3 Abb. N. ' Sup'm. Ct. 1875, Pitkin v. Cool- S. 51. ey, 5 Hun, 48. 72 LAW OF EEFEKEES. nature of the case ; ^ a certificate of the referee showing what took place on the trial should also be furnished.^ But one extra allowance can be granted.^ Where the re- port was set aside for the misconduct of the referee, the party taking it up cannot be allowed the referee's fees as a disbursement.'* "Where a party is by statute entitled to increased costs, the referee must make a certificate to that effect ; ^ the certificate must be of some fact appearing on the trial, not of things extrinsic thereto, of which the court or referee may have no knowledge.^ It may be filed nunc pro tunc, even after argument at special term ; '' should state how many issues were joined, what findings were made on such issues, and the fact that the party is entitled to the increased costs.^ The certificate is conclusive on the taxing officer ; ^ if erroneous, it may be vacated on motion at special term.^" A party alleging errors in the fees of a referee must move for re-adjustment, pointing out the error.-'* § 7. Entering Judgment. — The report of the referee to hear and determine stands as the decision of the court, and except where otherwise expressly provided by law, judg- ment may be entered thereon by the clerk as directed there- in upon filing the decision or report.-*" It is entered as if made by a justice at special term ; no direction of a judge 1 N. T. Super. 1867, Gori v. Smith, ' Com. PI. 1854, Snyder ®. Beyer, 39 Super. 563 ; Sup'm. Ct. Sp. T. 3 E. D. S. 235. 1849, Gould «. Chapin, 4 How. 185. "Brooklyn City Ct. Sp. T. 1881, 2 Sup'm. Ct. Sp. T. 1849, Gould Hudson v. Guttenberg, 9 Abb. N. C. «. Chapin, 4 How. 185 ; Sup'm. Ct. 415. Sp. T. 1858, Main J). Pope, 16 How. » Sup'm. Ct. 1876, Lillis d. O'Con- 271. ner, 8 Hun, 280; Sup'm. Ct. 1825, 3 Sup'm. Ct. 1879, Flynn -o. Equi- Munford tt. Withey, 1 Wend. 279 ; table Co. 18 Hun, 212 ; N. Y. Super. Sup'm. Ct. 1831, Barney v. Keith, 6 1880, McDonald «. Mallory, 46 Pu- Wend. 555. per. 58. i" Sup'm. Ct. 1876, Lillis ^^ O'Con- ■1 Sup'm. Ct. Sp. T. 1883, Meyer nor, 8 Hun, 280; Sup'm. Ct. 1831, ID. Bernheiraer, 5 Law Bui. 46. Barney ». Keith, 6 Wend. 555. 6 Code Civ. Proc. § 3248. " 1881, Kearney «. McKeon, 85 N. 61881, Bain «. Rochester, 85 N. Y. 136. Y. 523. 12 Code Civ. Proc. § 1238. PROCEEDINGS SUBSEQUENT TO TEIAL. 73 is necessary.^ The act is merely clerical, no opposition can be justly made thereto.^ It is the duty of the clerk to make up the roll, and enter the judgment immediately on filing the report ; ^ for any omission therein the clerk, not the prevailing party, is responsible ; * the prevailing party has no obligation beyond the filing of such papers as in the progress of the trial his adversary requires.^ No notice of intent is required save that of the adjustment of costs.^ If the entry of judgment precedes such adjiistment the amount thereof when ascertained, is to be inserted in blanks left for the purposed The judgment should not contain the findings of the referee ; his direction that judgment be en- tered is all that is required.^ It cannot be entered until all the issues are disposed of.^ If the judgment entered is not such a one as is authorized by the report, the remedy is by motion at special term.^"' The code makes no distinc- tion as to the manner of entry between interlocutory and final judgment ordered by the report ; neither can be en- tered until aU the issues are disposed of ; '^ where that is done the functions of the referee, and, as a necessary con- sequence, the trial, are terminated, and judgment, whether final or interlocutory, must be entered by the clerk.^^ If 1 1860, Hancock «. Hancock, 22 N. Waterbury, 18 Super. 686; N. Y. Y. 568 ; N. Y. Super. Sp. T. 1867, Super. 1849, Renouil v. Harris, 4 Currie i). Cowles, 35 Super. 3 ; 1885, Super. 641. Clapp v. Hawley, 97 N. Y. 610. "Code Civ. Proc. § 1228 ; N. Y. 2N. Y. Super. Sp. T. 1867, Currie Super. 1849, Renouil «. Harris, 4 V. Cowles, 30 Super. 3 ; N. Y. Super. Super. 641. 1849, Renouil t). Harris, 4 Super. ' Ct. App. 1866, Cotes v. Smith, 641; Sup'm. Ct. Sp. T. 1850, Mo- 31 How. 146; below, 29 How. 326. Mahon B. Allen, 7 Abb. 1 ; Sup'm. ^n. Y. Super. 1867, Currie ■b. Ct. 1863, Bihinu. Bihin, 17 Abb. 19. Cowles, 30 Super. 3. 3 Code Civ. Proc. § 1228; N. Y. 'Sup'm. Ct. 1858, McMahon v. Super 1849, Renouil\. Harris, 4 ^'^f^' ^.^^V SL H T'd Super. 641 ; Ct. App. 1866, Cotes v. '" f P''"' f^ ^^l.^^tTr. t"' Smith, 31 How. 146 ; 1885, Clapp .. Howland, 20 Hun 472 ; 1860 In- Hawley 97 N. Y. 610; N. Y. Su- gersoll «. Bostwick, 22 N. Y. 435. Hawjey, »/ rs. i. " ' ii Sup'm. Ct. 1850, McMahon v. per. 1871, Metcalfe. Baker, 34 Su- ^^^^^^\ ^^^ ^. ,, g^^, 335^ ^''n Y. Super. 1849, Renouil .. Sup'm. Ct. 1874, Mundorf .. Mun- Harris, 4 Super. 641 dorf, 1 Hun, 41. 6 N. Y. Super. 1860, Hunneman v. 12 Code Civ. Proc. § 1228. 74 LAW OF EEPEEEES. an accounting is ordered it may thereafter be directed by the court before the referee who tried the issues, or before another, in its discretion.^ It is only when questions are reserved by the report to be passed upon by the court that a motion for judgment is necessary ; ^ in the absence of any such reservation the clerk must enter judgment as of course.^ A different practice has some times, perhaps most frequently, been adopted, and is supported by some of the older cases ; * but it is not in accordance with the provisions of the Code of Civil Procedure, nor with the later decisions. On a motion for confirmation of the re- port, and interlocutory judgment thereon, neither the merits nor allegations of error can be considered ; and in the absence of proof of irregularity, surprise or newly dis- covered evidence, judgment will be ordered as of course.^ The death of a sole plaintiff" after the report is filed does not prevent the, entry of judgment against him ; ^ but a re- port signed, not delivered, after his death cannot have ef- fect by relation.'^ Formal notice of entry must be given ; ^ the notice must be endorsed and subscribed with the name and address of the party's attorney.^ § 8. Excepting to the Report. — An exception to a ruling upon a question of law made after the cause is finally sub- mitted must be taken by filing a notice thereof in the clerk's office, and serving a copy on the attorney for the adverse party. It may be so taken at any time within ten days after service upon the exceptant of a copy of the report, and written notice of the entry of judgment. If made before iSup'm. Ct. 1874, Maidorf i). 1856, Palmer v. Palmer, 13 How. Mundorf, 1 Hun, 41; Code Civ. 363. Proc. § 1230. 6 N. Y. Super. Sp. T. 1879, Hath- 2N. Y. Super. Sp. T. 1879, Hath- away i). Russell, 45 Super. 538. away v. Russell 45 Super. 538; ^N. Y. Super. 1850, Soranton v. Opinion of Chief Justice. 1885,Clapp Baxter, 5 Super. 660. V. Hawley, 97 N. Y. 610; Code Civ. ^ Sup'm. Ct. Sp. T. 1860, Kissam Proc. § 1331. v. Hamilton, 30 How. 369. 3 1885, Clappi). Hawley, 97 K Y. «Code Civ. Proc. § 1351. 610 ; Code Civ. Proc. § 1338. » Kelly ®. Sheehan, 76 N. Y. 335 ; * Sup'm. Ct. Sp. T. 1853, Bantes Rule 3. V. Brady, 8 How. 316 ; Sup'm. Ct. PBOCEEDINGS SUBSEQUENT TO TEIAL. 75 judgment it must be entered in the judgment roll ; if after, must be attached thereto. In either case it forms part of the papers upon which the appeal must be heard ; ^ in any other case the exception must be taken when the ruling is made.^ When the party relies exclusively on exceptions to erroneous decisions made during the trial, exceptions to the conclusions of law, or to the final decision are unne- cessary.^ Where evidence has been received without ob- jection, and the case submitted without objection, an objection in the exceptions to the referee's report is too late.* An exception will not lie to a finding founded on immaterial evidence, unless objection was made to the admission of the evidence, and exception taken.'' Excep- tions to the conclusions of law in a referee's report are es- sential to a review of the judgment entered thereon.^ Neg- lect to except to a report defective on its face makes it ab- solute.'' Exceptions are necessary only when questions of law are to be raised ; ^ they are not required to enable the defeated party to insist that the report is contrary to the evidence.^ Findings of fact need no exceptions, nor does a refusal to find a fact when requested.^" Refusal, when re- quested, to make any finding on a material question does ; " 1 Code Civ. Proc. § 994. ' Sup'm. Ct. 1874, Catlln v. Catlin, 2 Code Civ. Proc. § 995; N. Y. 3 Hun, 378; 4 T. & C. 664; Sup'm. Super. 1873, Daineae c. Allen, 36 Ct. Chamb. 1884, Gade v. Gade, 14 Super. 98; 14 Abb. N. S. 363; Abb. N. C. 510. Sup'm. Ct. 1856, Brewer ii. Irish, 13 » Sup'm. Ct. 1877, Met. Gas Co. v. How. 481. Mayor, 9 Hun. 706. 8N. Y. Super. 1873, Dainese ii. 9 Sup'm. Ct. 1854, O'Nell j). N. Y. Allen, 36 Super. 98 ; 14 Abb. N. S. Ag. Soe. 19 Barb. 163 ; Sup'm. Ct. 363- N. Y. Super. 1863, Mayor v. 1877, Met. Gas Co. ■». Mayor, 9 Hun, Erben, 34 How. 358 ; N. Y. Super. 706; Sup'm. Ct. 1883, Mead v. 1860, Frost i). Smith, 30 Super. 108. Smith, 38 Hun, 639 ; Sup'm. Ct. 4 Sup'm. Ct. 1875, Gibson ». Stet- 1885, Griffiths «. Phelps, 31 Week, zer, 3 Hun, 539. Dig. 390 ; Sup'm. Ct. 1886, Spenoe 61875, Olivers. Burnett, 65 N. Y. «. Chambers, 39 Hun, 193; Sup'm. 559. Ct.l885,Porter«. Smith,35Hun,118. s Sup'm. Ct. 1877, Tallmadge v. i» Sup'm. Ct. 1886, Spenoe «. Whitman, 11 Hun, 367 ; Sup'm. Ct. Chambers, 39 Hun, 193 ; Code Civ. 1871, Russell u. Duflow, 4 Lans. Proc. § 993. 399; Sup'm. Ct. 1868, Leffler u. " 1877, Potter d. Carpenter, 71 N. Field, 50 Barb. 407. Y. 74. 76 LAW OF EEFEEEES. SO does failure to find a fact proved by incontestible evi- dence.^ No exception will lie to failure to find a fact in the absence of a request.^ Exceptions must be filed with- in the time prescribed, otherwise the right is lost ; ^ but the court may, on such terms as may be just, allow excep- tions to be filed now for then.* Exceptions to requests made on the settlement of the case, if objected to, are too late.^ None lies to the refusal of the referee to report the particulars that make up his general finding." The excep- tion must be specific, not general ; '' but the same strictness is not required as in exceptions to a charge.^ A general exception to all the rulings of law is unavailing if any of them are correct.^ An exception to a general conclusion of law that one party is entitled to recover of the other, raises the question whether on all the facts found the party is entitled so to recover.^'' An exception to the conclusion that a party is entitled to recover a sum certain raises the question whether the party is entitled to recover the entire sum.*^ A general exception to all the findings, and each 1 Sup'm. Ct 1875, Day ». Mooney, 6 T. & C. 382; 1873, Beok b. Shel- don, 48 N. Y. 365. 2 Sup'm. Ct. 1873, Carroll d. Stat- en Island Co. 65 Barb. 32 ; N. Y. Super. 1865, Hartford Co. v. N. Y. Co. 26 Super. 411 ; 1864, Ashley v. Marshall, 29 N. Y. 494; N. Y. Su- per. 1873, Balzer «. Newlas, 35 Su- per. 203 ; N. Y. Super. 1860, N. Y. Co. D. Riehmond, 19 Super. 213. 3 Sup'm. Ct. 1856, Tremaine d. Rider, 13 How. 148; Sup'm. Ct. 1866, Sutherland v. Rose, 47 Barb. 144; Sup'm. Ct. 1861, Tylers. Wil- lis, 33 Barb. 337; N. Y. Super. 1868, Hatch v. Fogarty, 30 Super. 488. 4 Code Civ. Proc. §§ 724, 783; Sup'm. Ct. Sp. T. 1884, Gade v. Gade, 14 Abb. N. C. 510 ; Sup'm. Ct- Chamb. 1862. Booth «. Mullen, 14 Abb. 228; Sup'm. Ct. Sp. T. 1867, Sheldon J). Wood, 14 How. 18; Sup'm. Ct. 1882, Matter of Atty. Gen. «. Continental Co. 46 How. 93. 51882, W~ard v. Craig, 87 N. Y. 550; Sup'm. Ct. 1880, Palmer fl. PhoB- nixCo. 32 Hun, 224; Sup'm. Ct. 1882, Bane «. Neus; 2 Civ. Proc.; R. 185. " Sup'm. Ct. 1875, Avery «. Foley, 4 Hun, 415. ' 1874, Ledoux «. R. R. Co. 61 N. Y. 613 ; N. Y. Super. 1870, Jones v. Bridge, 32 Super. 431 ; Sup'm. Ct. 1868, Loomis ». Loomis, 51 Barb. 357; 1868, Wheeler v. Billings, 38 N. Y. 363 ; 1865, Newell «.-Doty, 83 N. Y. 83 ; Ct. App. 1865, Graham ®. Chrystal, 2 Keyes, 31. 8 1873, Newlin «. Lyon, 49 N. Y. 661. 9 1884, Smith v. Piatt, 96 N. Y. 635. 1" 1885, Hemmingway ». Poueher, 98 N. Y. 281. " 1874, Briggs ii. Boyd, 56 N. Y. 389. PKOCEEDINGS SUBSEQUENT TO TRIAL. 77 and every of them, raises no specific question, and is of no avail.^ Only the decision to which exception has been filed can be reviewed on appeal.^ If part of a finding is cor- rect, a general exception is unavailable,^ and the same rule applies to a request to find.* No exception lies for error in favor of the party excepting.^ An exception by appellant is not available to respondent on appeal.® An extension of time to serve a case does not extend the time to serve exceptions.''' An exception to a finding of fact against un- disputed evidence raises a question of law.^ § 9. lyEaking and Settling a Case. — If the report of the ref- eree directs an interlocutory judgment, it may be reviewed by motion for a new trial at general term ; ^ or by appeal from the interlocutory judgment.'" If it directs final jiidg- ment it may be reviewed by appeal." In either event a case must be made and settled as prescribed by the Code and by the rules of practice,^^ unless the party appealing in- tends to rely solely upon exceptions, filed and served after notice of filing and serving the report, under section 974 of the code.^^ The ten days within which the case must be made do not begin to run until entry of judgment on the report and notice thereof.^* The case must contain the evi- 11882, Ward v. Craig, 87 N. Y. 'N. Y. Super. 1868, Hatch v. 5a0; 1865, Newell ». Doty, 33 N. Y. Fogarty, 30 Super. 488; Com. PI. 83 ; 1868, Wheeler «. Billings, 38 N. 1856, Beach «. Gregory, 3 Abb. 78. Y. 363 ; 1883, Mayor v. R. R. Co. 88 « Sup'm. Ct. 1867, Strittmacher v. N. Y. 351 ; Sup'm. Ct. 1884, Riley v. Sallna Co. 34 How. 74 ; Ct. App. Sexton, 33 Hun, 345. 1869, Marvin «. Inglis, 39 How. 329. 2 Ct. App. 1867, Brush ®. Lee, 3 ^ Code Civ. Proc. § 1001 ; N. Y. Abb. N. S. 304; Sup'm. Ct. 1856, Super. 1879, Hathaway v. Russell, Bronson «. Irish, 13 How. 481 ; Ct. 45 Super. 538. App. 1856, Johnson v. Whitlock, 13 wCode Civ. Proc, § 1349; Hatha- How. 571 ; Sup'm. Ct. 1874, Union way v. Russell, 45 Super. 538. Co. -B. Byington, 1 Hun, 44. " Code Civ. Proc. § 1346. 3 1877, Crawford «. Everson, 68 12 Code Civ. Proc. § 997 ; Rule 33 ; N. Y. 624. Sup'm. Ct. 1878, McLean v. Cole, 13 4 Sup'm. Ct. 1878, Heilman v. Hun, 300 ; Sup'm. Ct. 1880, Brown Hammond, 13 Hun, 474. ■». Grupp, 10 Week. Dig. 357. 6N. Y. Super. 1885, Heim v. is Code Civ. Proc. § 998. Link, 52 Super. 547. w 1880, French v. Powers, 80 N. ^Ct. App. 1875, Noyes «. Phillips, Y. 146; Gormerly v. McGlynn, 84 16 Abb. N. 8. 400. N. Y. 284. 78 LAW OP EEPEEEES. dence bearing on the facts intended to be reviewed, the ex- ceptions taken during, as well as after the trial to the final decision, and the findings of facts and conclusions of law sep- ai'ately stated.'' A case containing the evidence is essential where the facts are sought to be reviewed." One not con- taining the evidence brings up only findings of fact and conclusions of law.^ It must state that it contains all the evidence, otherwise it will be presumed the findings are correct.* If the appellant omits evidence, the respondent should supply it by amendment.^ The finding.^ of fact must be incorporated, otherwise the appeal cannot be heard ; ^ and must agree with those in the report ; other- wise those made on the settlement of the case will be disregarded.'^ Where the party relies exclusively on erroneous decisions made during the trial, exceptions to the conclusions of law are not necessary ; ^ the ex- ceptions must appear in the case otherwise questions of law cannot be raised.^ A case containing no ex- ceptions, either to the final decision or to questions of law decided during the trial, cannot be reviewed on appeal,^" except to ascertain if the report is against the evidence." Exceptions to rulings on requests to find made on the settlement of the case may be inserted, iCode Civ. Proc. § 997; N. Y. land d. Cameron, 31 N. Y. 115; 1865, Super. 1873, Dainese v. Allen, 14 Doty v. Carolus, 31 N. Y. 547. Abb. N. S. 363 ; Ct. App. 1856, ' 1875, Tompkins v. Lee, 59 K. Y. Johnson v. Whitlook, 13 How. 663 ; 1880. Sehwinger ■». Raymond, 571. 83 N. Y.193; Compare Hamilton t. 2 N. Y. Super. 1860, Frost v. Proudfit, 19 Super. 191. Smith, 30 Super. 108. 8 ]sr. Y. Super. 1873, Dainese v. SN. Y. Super. 1860, Frost ■». Allen, 14 Abb. N. S. 363. Smith, 20 Super. 108; Sup'm. Ct. » 1860, Ingersoll v. Bostwiok, 23 1858, Conolly «. ConoUy, 16 How. N. Y. 425; 1856, Magie v. Baker, 224. 14 N. Y. 435; 1858, Otis v. Spencer, 4 Sup'm. Ct. Griffiths v. Phelps, 16 N. Y. 610. 21 Week. Dig. 390 ; Sup'm. Ct. 1886, ^ N. Y. Super. 1873. Dainese v. Spenoe «. Chambers, 39 Hun, 193. Allen, 14 Abb. N. S. 363 ; Sup'm. s 1871, Tomlinson v. Mayor, 44 Ct. 1861, Tyler ■». Willis, 33 Barb. N. Y. GOl. 337. « Sup'm. Ct. 1860, Matthews v. "Sup'm. Ct. 1877, Mut. Gas Co. d. Mayor, 14 Abb. 209 ; 1864, Bridger Mayor, 9 Hun, 706. ®. Weeks, 30 N. Y. 328 ; 1865, Le- PROCEEDINGS SUBSEQUENT TO TEIAL. 79 unless objection be made at that time ; ^ but if objection be made the referee has no power to insert exceptions not in fact taken.^ The finding of facts made by the referee in his report cannot be changed, nor can exceptions not in fact taken be inserted,^ nor can any new findings be made on the settlement.* If no findings are inserted the judg- ment will be presumed to be correct.^ If a motion was made for a non-suit, the case must show the ruling thereon and an exception thereto.^ The opinion of the referee, if any was given, must be inserted.'' The settlement is a judicial act and cannot be performed by two out of three referees without notice to all.^ If a party is dissatisfied with the case as settled, the remedy is by motion for a re- settlement.' The remedy for refusal to settle is by man- damus, but before the referee can be compelled to settle it in a particular way it must be made to appear that such way is in accordance with the facts.'" The motion for re-set- tlement must be made at special term.'' In settling the case the referee must correctly state what took place on the trial, and what he did as the result of such trial.'^ The case must be certified by the judge or referee who tried it.'^ 1 1883, Ward B.Craig, 87 N.Y. 550. « N. Y. Super. 1871, Townsend v. 2]Sr. y. Super. 1878, Dainese v. Glens Falls Co. 33 Super. 130; 10 Allen, 14 Abb. N. S. 363 ; 1873, Car- Abb. N. S. 377; N. Y. Super. roll V. Staten Island Co. 65 Barb. 32; Chamb. 1862, Fielden v. Lahens, 14 1856, Johnson v. Whitlock, 13 N. Y. Abb. 48. 344 ; 1855, Grisconi v. Mayor, 13 N. » Sup'm. Ct. 1867, Leffler v. Field, Y. 586; Sup'm. Ct. 1856, Brown v. 33 How. 385; 47 N. Y. 407; 1871, Irish, 13 How. 481. Van Slyck v. Hyatt, 46 N. Y. 359. »1856, Johnson v. Whitlock, 13 w Sup'm. Ct. Sp. T. 1861, People N. Y. 344; 1855, Grisoom «. Mayor, v. Baker, 35 Barb. 105; 14 Abb. 13 N. Y. 586; Sup'm. Ct. 1867, 19. Voorhis v. Voorhis, 50 Barb. 119. " Sup'm. Ct. 1853, Witbeck s. •4 Sup'm. Ct. 1880, Palmer «. Phoj- Waine, 8 How. '433 ; Com. PL 1870, nix Co. 33 Hun, 334. Talcott v. Rosenberg, 3 Daly, 203 ; 5 1869, Viele ■». Troy Co. 20 N. Y. 8 Abb. N. S. 387; Sup'm. Ct. Sp. T. 184. 1487, Luyster ®. Sniffen, 1 Barb. 61877, Vanderlip i>. Keyser, 68 428; 3 How. 250. N. Y. 443 ; Sup'm. Ct. 1866, Pritch- '2 Sup'm. Ct. 1867, Voorhis «. ard V. Hert, 39 Hun, 378. Voorhis, 50 Barb. 119. ' Sup'm. Ct. 1861, Warren v. War- ^ Code Civ. Proo. § 1353. ren, 22 How. 143. 80 LAW OF REFEREES. Where the first report is set aside for defective findings, and another is made which warrants the judgment entered thereon, the last report only should be inserted.^ The case should contain only such evidence, exceptions and findings as are expressly allowed by the referee.^ A referee who has by assignment a fii-st lien on the judgment for his fees is disqualified from settling the case ; in such event the judgment wiU be reversed and a new trial ordered.^ § 10. Making and Settling a Bill of Exceptions. — The making and settlement of a case is unnecessary where the appel- lant intends to rely only upon exceptions taken after the case is finally submitted.* A bill of exceptions must con- tain only so much of the evidence as may be necessary to present the questions of law upon which the same were taken. All matter not necessarily inserted must be strick- en out on the settlement ; ° a bill containing an introduc- tory statement of the proceedings in the cause, the notice of appeal, the judgment record, including the referee's re- port, and the exceptions filed thereto is sufficient ; ^ re- spondent's exceptions should not be included in the ab- sence of special reasons therefor ; '' nor should the bill contain questions withdrawn, answers excluded, nor testi- mony not necessary to raise the questions on the excep- tions.^ The report will not be set aside on a biU of ex- ceptions containing no evidence, unless such report con- tains facts which render such conclusions erroneous.^ "Where the record contained only the judgment roll and iSup'm. Ct. 1881, Lyddy B.Cham- eSup'm. Ct. 1873, Davis v. Van berlain, 24 Hun, 377. Wie, 1 T. & C. 530; Sup'm. Ct. 1862, 3 Sup'm. Ct. 1867, Leffler v. Field, Ferguson -d. Hamilton, 35 Barb. 427 ; 33 How. 376. N. Y. Super. 1858, Frost «. Smith, 3i883_ Leonard v. Mulry, 93 N. 20 Super. 108. Y. 392. 7 N. Y. Super. 1870, Dabney v. ■•Code Civ. Proo. § 998. Stevens, 10 Abb. N. S. 39. 5 Rule 34; Sup'm. Ct. 1874, Tweed ^K Y. Super. 1863, Hoffman d. ■c. Davis, 1 Hun, 252; Sup'm. Ct. ^tna Co. 24 Super. 501; 19 Abb. 1876, Marckwald t). Ocean Co. 8 325. Hun, 547; 1850, Price v. Powell, 3 91871, Tomlinson v. Mayor, 44 N. N. Y. 322. Y. 601. PROCEEDINGS SUBSEQUENT TO TBIAL. 81 what purported to be a copy of a paper endorsed " minutes of the referee," which had never been settled or signed, the paper will not be considered by the court.^ Time to serve a bill of exceptions runs from the time of service of notice of entry of judgment.^ Extension of time to serve a bill of exceptions does not extend time to serve notice of appeal.^ Where more than one referee is appointed a majority may settle a case, but all must have notice of meeting.* The exceptions need not be signed or sealed by the referee.^ Application for a re-settlement must be made to a justice at special term.^ If the exceptions are numerous, counsel must on the argument point out the ones on which he relies^ It is not a valid objection to the bill that aU the exceptions are contained in one sentence where it appears that each request was distinctly made and ruled upon, and each ruling excepted to.^ iSup'm. Ct 1880, Albright «. Ri- 6 Sup'm. Ct. 1853, Witbeck i>. ker, 23 Hun, 867; 11 Week. Dig. Waine, 8 How. 433; Com. PI. 1870, 27. Talcott V. Rosenberg, 3 Daly, 203 ; 8 21880, French v. Powers, 80 N. Y. Abb. N. S. 287; Sup'm. Ct. Sp. T. 146 ; Rule 32. 1847, Luyster ». Sniffen, 1 Barb. 428 ; s Sup'm. Ct. 1863, Sales ®. Butler 3 How. 250; See Adams «. Bush, 2 27 How. 133. Abb. N. S. 118. 4 Code Civ. Proc. § 1036 ; N. Y. ' 1877, Hibbard v. Haughlan, 70 Super. 1871, Townsend v. Glens N. Y. 54; 1874, Jewell «. Van Steen- Falls Co. 33 Super. 130; 10 Abb. N. burgh, 58 N. Y. 85. 8. 277. ' 1854, Dunckel v. Wiles, 11 N. Y. 5 1854, Zabriskie v. Smith, 11 N. 430. Y. 480. 82 LAW OF BEFEEEES. PAET II. CHAPTEE I. INTEBLOCUTOBY EEPEBENCES GENEEALLT. Section 1. — When ordered. Sbotion 3. — The order; bringing on the hearing. Section 3. — Proceedings on the hearing. Section 4. — The report. § 1. Wlien an Interlocutory Reference may be Ordered. — A reference ordered at any stage of an action or special pro- ceeding for any purpose other than the trial of all the is- sues is interlocutory.^ Such references are discretionary, and may be made with or without the consent of the par- ties ; ^ but the court can order a reference for the trial of part of the issues against the will of either party only in action where a long account is involved.^ It has no author- ity to order a reference to take testimony to be used on the trial.* Where, after trial of the issues an accounting is ne- cessary, a referee may be appointed to take and state the account.* A reference may be ordered in any case where, after the issues are tried, the court desires further informa- tion.^ After the trial of the issues in an action at law for 1 1868, Morris «. Morange, 38 N. Ct. 1847, Rathbun v. Rathbun, 3 Y. 172 ; Ct. App. 1867, Claris; v. How. 139 ; Sup'm. Ct. Sp. T. 1847, Brooks, 3 Abb. N. S. 385, 404 ; 1874, Stewart v. Gardner, 3 How. 156 ; Austin V. Ahearne, 61 N. Y. 6 ; 1880, 1858, Phillips w. Gorham, 17 N. Y. Webb V. Buckalew, 82 N. Y. 555. 270. 2 Code Civ. Proo. §§ 837, 1013, ^1881, Camp v. Ingersoll, 86 N. 1014, 1015. Y. 433 ; 1885, Peck v. Vandemark, 3 Sup'm. Ct. 1878, Barnes «. West, 99 N. Y. 39. 16 Hun, 68 ; Sup'm. Ct. 1880, Dane esup'm. Ct. Sp. T. 1886, Central v. Liverpool Co. 21 Hun. 259. Trust Co. v. Northern R. R. Co. 18 ^ Sup'm. Ct. 1887, Farmers' Bank Abb. N. C. 64. J). Houston, 44 Hun, 567; Sup'm. INTEBLOCUTORY EEFEEENCE8 GENEEALLY. 83 unliquidated damages, a referee may be appointed to ascer- tain the damages.^ On application to the court to protect the lien of an attorney, the existence and amount thereof may be determined in a summary way by a reference." Where the trial will involve a long account the reference may be had before or after the other issues have been tried ; ^ but in an action to open an account stated, and for an accounting, the reference should not be ordered until the action has been tried.* A reference may be ordered to settle a judgment ; ^ to take the examination of the de- fendant in an action by a judgment creditor;^ to mark a case secured on appeal ; '' to settle conflicting claims of de- fendants on inter-pleader ; ^ to superintend the execution of a judgment ; ^ to direct and superintend the discovery of books and papers ; ^'^ to take the deposition of a witness ; '^ to settle issues to be tried by a jury ; '^ to appoint a receiv- er and take security ; ^^ to approve an undertaking or the sureties thereto ; to appoint an appraiser, receiver or trus- tee ; or to make an examination or inquiry ; "'* but the court cannot delegate to a referee the power to fix a proper allowance in difficult and extraordinary cases.^^ In a fore- closure action where the mortgage covers several lots owned by different defendants, a reference may be had to ascertain the equities and report the order of sale.^^ Where in the course of a trial it appears that one of the parties 1 1887, Untermeyer b. Beinhauer, ^ Chancery, 1831, President v. 105 N. Y. 521. ' Bangs, 2 Paige, 570. 2 Com. PI. 1863, Ackerman v. sCom. PI. Sp. T. 1883, Lazarus Ackerman, 14 Abb. 339 ; Sup'm. Ct. ii. Heilman, 11 Abb. N. C. 93. 1876, Brown v. Mayor, 9 Hun. 587 ; '» Code Civ. Proc. § 807. Sup'm. Ct. 1877, Brown v. Mayor, "Code Civ. Proc. § 879. 11 Hun, 31. 1^ Rule 31. 3N. Y. Super. 1853, Bowman v. i^com. PI. Sp. T. 1854, Wetter s. Sheldon, 8 Super. 607. Sohlieper, 7 Abb. 93; See Eagle Iron * Sup'm. Ct. Sp. T. 1867, Mitchell Works, 8 Paige, 380. «. Stewart, 3 Abb. N. S. 250 ; Sup'm. " Code Civ. Proc. § 837. Ct. Sp. T. 1852, Graham v. Golding, « Sup'm. Ct. 1871, People ». Alb. 7 How. 360. & Susq. R. R. Co. 5 Lans. 25. sCode Civ. Proc. § 1231. i^ Sup'm. Ct. 1847, Bard v. Steele. "Code Civ. Proc. § 1878. 3 How. 110. ' Sup'm. Ct. Sp. .T. 1856, Munn «. Barnum, 3 Abb. 409. 84 LAW OF EEFEEEES. will be entitled to redeem on payment of an amount not de- termined, a reference may be ordered before tlie findings are signed to ascertain the amount to be paid.'' On appli- cation for a peremptory mandamus to compel a foreign cor- poration to exhibit its books, a reference may be ordered to ascertain the faots.^ Where the special term in direct- ing judgment has adopted an erroneous measure of dam- ages, the general term may send the cause to a referee to ascertain the proper sum to be allowed.^ § 2. The Order and Bringing on the Hearing. — Where the order or decree directing an interlocutory reference con- tains no provision^ regulating the proceeding thereon, and the rules of court have made no provisions therefor, the hearing is brought on and conducted in accordance with the practice on similar references in the late court of chan- cery.* Such reference is analogous to that to a master under the old chancery practice to enable the court to make a proper decree.^ The order or decree should ' distinctly state the object and scope of the proceed- ing. The referee has no power beyond that expressly given.® He must possess the same qualifications, and be appointed in the same manner as on references for the trial of issues." But if the reference be one authorized to be made on ex parte application, the appointment may be made by a chamber order.® He should take no steps until he has received a certified copy of the order appoint- 1 Sup'm. Ct. Sp. T. 1886, Central 5 Sup'm. Ct. 1859, Cameron b. T. Co. «. Northern R. R. Co., 18 Freeman, 18 How. 310 ; Sup'm. Ct. Abb. N. C. 64 ; id. 381 ; 42 Hun, Sp. T. 1862, Graham v. Golding, 7 602. How. 260 ; Sup'm. Ct. 1856, Palmer 2 Sup'm. Ct. 1887, People «. St. ®. Palmer, 13 How. 363; 1874, Aus- Louis Co. 44 Hun, 552. tin v. Ahearns, 61 N. Y. 6. 8N. Y. Super. 1867, McKeon «. ejsr. Y. Super. Sp. T. 1877, Sulli- See, 27 Super. 449. van -u. Sullivan, 41 Super. 519 ; 53 ■•Rule 85: 1851,Wiggin ». Cans, How. 453; 1853, MoCracken ?). Val- 6 Super. 646 ; Sup'm. Ct. Sp. T. entine, 9 N. Y. 42 ; K. Y. Super. 1858, Elmore ■». Thomas, 7 Abb. 70 ; 1864, Ballard ». Burrowes, 35 Super. Sup'm. Ct. 1856, Ketehum ». Clark, 306. 22 Barb. 319 ; 1864, Austin -e. ' Code Civ. Proc. § 1034 ; Rule 80. Ahearne, 61 N. Y. 6. 8 Code Civ. Proc. §§ 873, 885. INTEELOCUTOEY EEFEEENCES GENEEALLY. 85 ing him.^ The party obtaining has the carriage of the ref- erence ; * should he fail to proceed with due diligence the opposing party may, on application, have leave to proceed.^ If the time and place of hearing be not fixed by the order or decree, the referee should fix a time and place of hear- ing ; should issue and deliver to the party having the car- riage of the reference, for service on the adverse parties or their attorneys, a summons or notice to attend at the time and place fixed.* It has been held that it is not strictly necessary that the notice of time and place should be in 1 ' ' Where a matter is referred to a master, to examine and report tiiere- on, on bringing the decree or order into his office 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 ad- verse 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 mat- ters to be examined, and the resi- dence 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 ex- ceeding fifty miles from the place of hearing, nor less than six days if over fifty and not exceeding 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. "If the party who is entitled to prosecute such decree, or order of reference, does not procure and serve such summons within thirty days af- ter the decree or order is entered, any other party or person interested in the matter of the reference shall be at liberty to apply to the court, by motion or petition, to expedite the prosecution of the decree or or- der. And after the proceedings have been commenced by the ser- vice of a summons to attend before the master, if the party entitled to prosecute such decree or order does not proceed with due diligence, the master shall be at liberty, upon the application of any other person in- terested, either as a party to the suit or as coming in to prove his debt or establish a claim under the decree or order, to commit to him the prosecution of the reference." Chancery Rule 101. Chancery, 1843, Quackenbush v. Leonard, 10 Paige, 131 ; Sup'm. Ct. 1860, Bonner «. MePhail, 31 Barb. 106. 2 Chancery, 1843, Quackenbush v. Leonard, 10 Paige, 131 ; Chancery, 1841, Holleys. Glover, 9 Paige, 9 ; Chancery Rule 101, supra. 3 Chancery Rule 101 ; supra; Chancery, 1848, Quackenbush v. Leonard, 10 Paige, 131 ; Chancery, 1841, Holley v. Glover, 9 Paige, 9. * Chanc, ry Rule 100; supra. 86 LAW OP EEFEEEES. writing, tliougli it is better so.' Unless otherwise directed by the order the summons or notice to attend should be served two days before the time fixed, on parties or their at- torneys residing in the same town or city, four days where they live not more than sixty miles distant, and a pro- portionate time for longer distances.** The court may or- der the hearing to proceed on two days' notice, but the ref- eree may exercise his discretion as to adjournments.^ The order of reference is appealable;* but proceeding without objection waives the right.^ Appearing before a referee named in an interlocutory decree and presenting claims on the accounting does not waive the right to appeal from the decree.^ Where the trial of the issues has terminated, and the court orders a reference for further information, the order should provide that such reference is without preju- dice to the consideration of any questions arising on the trial whenever any legal action shall be taken for their re- view, in the subsequent progress of the litigation.'' § 3. Proceedings on the Hearing. — Before taking any testi- mony the referee must be sworn,^ but proceeding with the reference is a waiver of this irregularity unless one of the parties is under disability, or the adverse party fails to ap- pear.^ Where persons under disabilities are parties, the proceedings will be set aside if the oath is not taken,'" but a referee to compute in foreclosure need not take the oath." The proceedings may be adjourned from time to time by the referee,'^ but for an unreasonable adjournment he may 1 Sup'm. Ct. Sp. T. 1859, Sage v. 9 Com. PI. 1878, Nason «. Lud- Mosher, 17 How. 367; Sup'm. Ct. dington, .56 How. 173; Sup'm. Ct. Sp. T. 1853, Stephens ». Strong, 8 1848, Garcie «. Sheldon, 3 Barb. 232; How. 339. Code Civ. Proc. § 731, par. 12. 2 Chancery Rule 100 ; anU P. 85. w Com. PI. , Sp. T. 1878, Exchange 3 Sup'm. Ct. 1886, Stubbs v. Rip- Co. v. Early, 4 Abb. N. C. 78. ley, 39 Hun, 620. " N. Y. Super. Sp. T. 1878, Mc- < Sup'm. Ct. 1886, C!entral T. Co. Gowan «. Newman, 4 Abb. N. C. 80. V. N. Y. & N. Co. 42 Hun, 602. 12 ]sf. y. Super. Sp. T. 1859, For- 6 Ante P. 31. rest v. Forrest, 16 Super. 651 ; N. Y. n874,BarkerD.White,58 N.Y.204. Super. Sp. T. 1859, Accessory Co. ®. ' Sup'm. Ct. 1886, Central Trust Garrison, 9 Abb. 141 ; 18 How. 1 ; Co.D.N.Y.&Jif.R.R.Co.42Hun,602. Sup'm. Ct. 1886, Stubbs «. Ripley, 8 Code Civ. Proc. § 1016. 39 Hun, 620. INTEELOCUTOEY EEFEEENCES GENEEALLY. 87 be removed.^ That formal adjournments were not had from time to time does not affect the regularity of the pro- ceedings if both parties gave all the evidence they desired.^ Witnesses may be subpoenaed to attend and produce books, documents, and papers.'' If the order of reference was made in an action the subpoena must be issued oiit of court and served as prescribed by the code of civil procedure.* Disobedience may be punished by proceedings for con- tempt, and by a fine.^ If the reference was ordered in a special proceeding the subpoena must be issued by and un- der the hand of the referee.^ Attendance may be com- pelled by proceedings for contempt before the court,''' or by attachment upon the order of a judge if the reference is in a special proceeding.^ The procedure to punish for contempt by the court in interlocutory references in an ac- tion is the same as on a trial of the issues.' If, in a special proceeding, the witness refuses, without reasonable cause, to be examined, or to answer a legal and pertinent question, or to subscribe his deposition after it has been correctly reduced to writing, he may be punished by imprisonment.^" The code contains no provisions authorizing the referee in interlocutory references to punish for contempt. The au- thority conferred by section 1018 applies only to references for the trial of issues. The testimony of the witnesses must be #fgned by them, and filed by the referee with his report.^^ The remedy for failure to sign is by motion, not by except- ing to the report ; ^^ failure to request a witness to sign is not a waiver of the signature.^^ On a reference to inquire and report the referee has no power to strike out evidence of a party who fails to appear for cross-examination, or 1 N. Y. Super. Sp. T. 1859, Forest ' Sup'm Ct. 1881, Matter of 11. Forest, 16 Super. 651. Crooks, 23 Hun, 696, 2 N. Y. Super. 1859, Accessory 8 Code Civ. Proc. § 855. Co. ■». Garrison, 9 Abb. 141; 18 » gup'm. Ct. 1881, Matter of How. 1. Crooks, 33 Hun, 696. 3 Code Civ. Proe. § 1017. '" Code Civ. Proc, § 856. * Code Civ. Proc. § 852. " Rule 30. 5 Code Civ. Proc. §§ 14, 853. i^ Sup'm. Ct. Sp. T. 1873, Nat. 6 Code Civ. Proo. § 854; Sup'm. Bank ■». Hibbard, 45 How. 381. Ct. 1885, People v. Ball, 37 Hun, -3 Sup'm Ct. Sp. T. 1880, Bowne 345_ «. Leveridge, 8 Abb. N. C. 148 u. 00 LAW OF EEFEEEES. to punisli for non-attendance.* A referee appointed to take the evidence is not bound to take irrelevant testi- mony.^ In taking depositions de hene esse, while the ref- eree is bound to take all the answers, leaving the question of competency or relevancy to the court, he is not bound to allow irrelevant or improper questions.* § 4. Report on Interlocutory References. — Neither the code nor the rules of the court prescribe the form of the report of a referee on interlocutory references. When a specific question is referred, his office is similar to that of a master in chancery, and the former practice of that court applies.* The report should contain the title of the cause, should be addressed to the court, must show that all persons entitled to attend were duly summoned, who appeared, should re- cite the substance, but not a copy of the order, and an epitome of the proceedings before him.'' In all cases the testimony must be signed by the witnesses and returned to court with the report.^ If the reference is to take an account, or for a similar purpose, the report will consist of two parts, the body and the schedules ; the body contain- ing the general conclusions, and referring to the schedules for detailed particulars.'' Items objected to but allowed in an account must be distinctly stated.^ Where the court has ordered judgment absolute for the plaintiff with costs, and directed a reference to ascertain the amount due, the referee cannot report a sum due defendant for which he is entitled to judgment, and defeat plaintiff's right to costs. ^ Where the order or decree directs just allowances to be iSup'Di. Ct. 1881, Matter of 1844, Franklin «. Van Cott, 11 Paige, Crooks, 23 Hun, 696. 139; Chancery, 1841, Hulbert «. Mc- 2 Sup'm. Ct. 1887, Matter of Sil- Kay, 8 Paige, 651. vernail, 45 Hun, 575. 6 Rule 30. 3 Com. PI. 1850, Gibson v. Pear- ' 1 Barb. Ch. Pr. p. [548]. sail; 1. E. D. S. 20. " 8 Sup'm. Ct. 1856, Ketchum t. < Rule 85; Sup'm. Ct. 1856, Ketch- Clark, 23 Barb. 319; Sup'm. Ct. um V. Clark, 32 Barb. 319 ; Matter 1874, Spooner ». Lefevre, 3 T. & C. of LefBngwell, 30 Hun, 528, Sup'm. 666. Ct. Sp. T. 1850, Graves v. Blanch- 9 n. y. Super. 1880, Rust i). Hau- ard, 4 How. 300. selt, 46 Super. 38. 6 1 Barb.Ch. Pr. p. [548],Chancery, INTERLOCUTORY REFERENCES GENERALLY. 89 made, all proper expenses of the trust, or business, as agents, clerks, counsel, etc. where necessary, may be allowed,^ but a trustee cannot be allowed for his services as attorney and counsel in matters relating to his trust.^ What are just allowances must be determined by the circumstances of each case. Such interest as shall be just and equitable is to be allowed, unless the contrary is directed in the order,^ annual rests and compound interest cannot be charged unless expressly so directed,* but where in taking the account the referee is acting as a court for the trial of the issues, he may allow compound interest in cases of gross mismanage- ment.^ When the order is to ascertain the facts, the re- port should contain only the facts found ; it is for the court, or judge, to draw conclusions.^ In such case the report should contain the facts, not the evidence at large.'^ Where the referee is directed to report with his opinion he should state fully the facts upon which the opinion is based.^ He is not bound to deliver his report until his 1 1869, Collier v. Munn, 41 N. Y. 143; Chancery, 1814, Green v. Win- ter, 1 J. Ch. 28; Chancery, 1823, McWhortie ■». Remsen, Hopk. 28; Chancery, 1830, Vanderheyden v. Vanderheyden, 2Paige. 287; Sup'm. Ct. 1882, Clute v. Gould, 28 Hun, 348; Sup'm. Ct. 1865, Lansing v. Lansing, 45 Barb. 182; 31 How, 55. 2 1869, Collier «.Mmin, 41 N. Y. 143 ; Chancery; 1886, Matter of Bank of Niagara, 6 Paige, 213. 3 "All parties accounting before a master shall bring in their accounts in the form of debtor and crediter ; and any of the other parties who shall not be satisfied with the ac- counts so brought in shall be at lib- erty to examine the accounting party upon interrogatories, as the master may direct. On any reference to take or state an account, the master shall be at liberty to allow interest as shall be just and equitable, with- out any special directions for that purpose, unless a contrary direction is contained in the order of refer- ence. And every charge, discharge, or state of facts, brought in before a master shall be verified by oath as true, either positively, or upon Information and belief." Chancery Bule, 107. ■> 1869, King ». Talbot, 40 N. Y. 76. 5 1877, Hannahs «. Hannahs, 68 N. Y. 610. f 1874, Austin «. Ahearne, 61 N. Y. 6; Sup'm. Ct. 1859, Goodridge «. New, 18 How. 189; Sup'm. Ct. Chamb. 1887, Kelly v. Charlier, 18 Abb. N. C. 416. ' Sup'm. Ct. Chamb. 1850, Dow V. Noxon, 5 How. 29. 8 Sup'm. Ct. Sp. T. 1856, Matter of Marsac, 15 How. 383 ; 1874, Aus- tin 11. Ahearne, 61 N. Y. 6. 90 LAW OF EEFEKEES. fees are paid,^ but if they are not paid within sixty daj's after the matter is finally submitted the reference may be terminated by notice by either party before the report is made.^ Where exceptions to the report are necessary they must be filed within eight days after filing the report and notice thereof, otherwise the report will become absolute though defective on its face.^ The time to except does not begin to run until the testimony is filed.* Leave to file exceptions now for then may be granted.^ If the ref- erence was ordered before judgment, to enable the court to make a proper decree, it must be confirmed at special term for enumerated motions ; ^ if after judgment, or to take proof on default at special term for non-enumerated mo- tionsJ The report is not binding on the court.^ The clause of rule 30 requiring exceptions to be filed within eight days has no application to a reference ordered to in- form the conscience of the court.' A referee appointed to ascertain who hold liens on a fund has no power to accept any waiver of the rights of a general assignee. He can re- port upon those judgments that are a lien on the fund.^" Where the general term modifies the judgment entered on the referee's report, and sends the case back for a further finding on a single point, the new report must be confirmed at special, not general, term." On a reference to inquire and report, the referee has no authority to report on a 1 1880, Geib «. Topping, 83 N. Y. ' Rule 30 ; Sup'm. Ct. Sp. T. 1884, 46 ; Com. PL 1879, Fischer v. Raab, Gade v. Gade, 14 Abb. N. C. 510 ; 58 How. 321. Sup'm. Ct. 1876, Matter of Guardian 2 Code Civ. Proo. § 1019. Sav. Ins. 9 Hun, 267. 3 Rule 30; Sup'm. Ct. 1874, Cat- s Sup'm. Ct. 1875, Thurber «. lin V. Catlin. 2 Hun. 378 ; Sup'm. Chambers, 4 Hun, 721 ; 1874, Aus- Ct. Sp. T. 1884, Gade v. Gade, 14 yn ^. Ahearne, 61 N. Y. 6. Abb. N. C. 510. 'J Sup'm. Ct. 1887, Martin v. 4 Sup'm. Ct. 1880, Pope.. Per- Hodges, 45 Hun, 38 ; Sup'm. Ct. Sp. ault, 22 Hun, 468. T. 1883, Atty.-Gen. v. Continental 5 Sup'm. Ct. Sp. T. 1884, Gade «. , . „ ' ' Gade, 14 Abb. N. 0. 510; N. Y. Su- ^- „\f °- ^^ ^ow, 93. per. 1880, Rust «.Hauselt, 46 Super. '^- ^- ^uper. 1864, Ballard v. 33; Sup'm, Ct. 1876, Douglas v. Burrowes, 35 Super. 206. Douglas. 7 Hun, 272. " Sup'm. Ct. 1886, Gautier «. " Sup'm. Ct. 1876, Empire, &o. Douglas Co. 39 Hun, 643. Co. V. Stevens, 8 Hun, 515. INTERLOCUTOEY EEFEKENCES GENEEALLY. 91 question of law arising thereon.^ Where he is directed to report with his opinion, his conclusions are not binding on the court,^ nor is the finding of fact on such reference con- clusive.^ If the findings of fact are erroneous, the case may be sent back ; * if the witnesses have failed to sign their testimony, the report may be set aside.^ The report may be reviewed on the motion to confirm after objections are filed,^ or before, or after judgment upon proof by affi- davit that error was committed to the prejudice of the moving party upon the hearing, or in the report. If made after judgment, such judgment may be set aside then, or after the new hearing.''' Where applications for the ap- pointment of a receiver were pending in two. suits, in one of which a referee, without notice to the parties, had made an appointment, the reference was opened to allow the ad- adverse party to be heard as to the fitness of the person appointed.^ If a party fails to except to the report within eight days it becomes absolute, though defective on its faco.^ Where, instead of filing the report and giving the usual notice the parties are cited summarily to show cause why the report should not be confirmed, an objection to the confirmation takes the place of objections filed.'" The finding of the referee on a disputed question of fact is not conclusive on the court, but may be reviewed with other questions, on appeal.''^ 1 Sup'm. Ct. 1887, Kelly v. Char- n874,Austiini. Aheame,61 N.Y.6. lier, 18 Abb. N. C. 416. 5 Sup'm. Ct. Sp. T. 1880, Bowne 2 Sup'm. Ct. 1886, Muhlenbach v. v. Leveridge, 8 Abb. N. C. 148 n. Pooler, N. Y. St. Rep. 223 ; 1874, « Rule 30. Austin V. Ahearne, 61 N. Y. 6. ' Code Civ. Proc. § 1233. 2 1874, Aiistin v. Ahearne, 61 N. ^ Com. PI. 1855, Lottimer v. Y. 6 Sup'm. Ct. 1880, Matter of Lord, 4 E. D. S. 183. Knapp, 8 Abb. N. C. 308 ; 1882, » Sup'm. Ct. 1874, Catlin «. Cat- Savage V. Sherman, 87 N. Y. 377 ; lin, 2 Hun, 378. Sup'm. Ct. 1883, Matthews v. Mur- w 1882, Savage v. Sherman, 87 N. chison, 14 Abb. N. C. 513 n; N. Y. Y. 377. Surr. 1882, Chatfield «. Hewlett, 3 " Sup'm. Ct. 1849 ; Burhans «. Dem. 191. Van Zandt, 7 Barb. 91. 92 LAW OF KEFEREES. CHAPTEE 11. INTEELOCUTOEY EEFEEENCES IN PAETICULAE CASES. Sbotiox 1. — Compulsory reference of part of issues. Section 3. — Compulsory reference of incidental questions. Section 3. — Keference for the information of the court. Section 4. — Reference to take and state an account. Section 5. — Reference to take deposition to be used on motion. Section C.^Reference of question of fact arising on motion. Section 7. — Reference to examine party before trial. Section 8. — Reference to take proof on application for judgment by default. Section 9. — Reference to sell chattels on the foreclosure of a lien thereon. § 1. Compulsory Reference of Part of Issues. — In an action tri- able by tlie court without a jury a reference may be ordered 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 involved in the issue ; ' but it is only in actions involv- ing a long account, not requiring the decision of difficult questions of law, that such references may be compulsorily directed.'^ The only effect of this provision is to authorize the court to appoint a referee to decide some of the issues less than the whole, or to report findings upon one or more specific questions of fact.^ It does not deprive either party of the right to trial by the court of matters not before the referee.* It may be ordered to ascertain the amount due an attorney for services, provided he shall finally estabhsh his right to recover.^ In an action for partition the court 1 Code Civ. Proc. § 1013. ^ Sup'm. Ct. 1880, Dane v. Lond. 2 Sup'm. Ct. 1878, Barnes «. West, ^'''•' ^- ^°- ^^ ^un, 259. 16 Hun, 68; Sup'm. Ct. 1880, Dane ''^- ^^- SuP-"-- 1867, Wheeler t.. ^. Lond. Liv., &c., Co. 31 Hun, Falconer, 30 Super. 45. 359 6 N. Y. Super. Chamb. 1852, Bow- man V. Sheldon, 8 Super, 607. INTEELOCUTOEY EEFEEENCES. 93 may order a reference to ascertain whether plaintiff has a lien, and the amount thereof, on the premises sought to be partitioned.^ § 2. Compulsory Reference of Incidental Questions. — The court may of its own motion, or upon application of either party, without consent of the other, direct a reference to take an account and report thereon after judgment, or where necessary for its own information ; and also deter- mine and report upon any question of fact, arising upon a motion, or otherwise except upon the pleadings.^ Where, after dissolution of a partnership by death, the surviving partner has continued the business with the assets of the deceased partner, a reference may be ordered to ascertain the amount due the estate of the deceased from the firm.^ Where the complaint prays for an accounting and payment of the balance found due, and defendant fails to appear, a reference will be ordered to take the account.* In action to dissolve a partnership, which is denied, and for an ac- counting, a reference to take the account cannot be ordered until the question of partnership is decided ; ^ so in an ac- tion in equity to compel the specific performance of an award requiring defendants to pay the value of shares of stock of a manufacturing corporation, a reference may be ordered to take an account of the assets, property, and debts of a corporation for the purpose of ascertaining such value ; ^ so in an action by an attorney for fees for profes- sional services, a reference may be ordered to ascertain the value ; '■ or in an action to dissolve a joint stock company, and for an accounting to ascertain the rights of the parties as against each other.^ 1 Sup'm. Ct. 1875, Thurber v. 5 gup'm. Ct. Sp. T. 1853, Bantes Chambers, 4 Hun, 721. v. Brady, 8 How. 316. 2 Code Civ. Proc. § 1015. « 1881, Camp v. Ingersoll, 86 N. 3 Com. PI. Sp. T. 1878, Hooley v. Y. 433. Gieve, 9 Abb. N. C. 8. ' N. Y. Super. 1852, Bowman v. * N. Y. Super. Chamb. 1855, For- Sheldon, 8 Super. 607. ter V. Lent, 3 Abb. 115 ; N. Y. Su- s Sup'm. Ct. 1856, Ketohum v. per. Chamb. 1848, Eyan v. McCon- Clark, 32 Barb. 319. nell, 3 Super. 709. 94 LAW OF REFEREES. • § 3. Reference for the Information of the Court. — A reference may be ordered to ascertain who is entitled to surplus moneys on foreclosure by advertisement ; ^ or to take proofs and report the terms upon which a judgment was settled, on a motion to vacate such settlement.^ Any specific ques- tion in an action may be referred where the taking of a long account is necessary,'^ before, or during the trial ;* to ascer- tain whether it would be for the interest of an infant to be- gin an action for partition ; but in such case the referee in his report should find facts ; his opinion is insufficient.^ On a motion to compel a purchaser on sale in partition to take title, a reference may be ordered to ascertain if the testator who died within three years left any debts outstanding.^ Where, after sale under foreclosure a surplus remains, and there are no contesting creditors, a reference may be or- dered to ascertain the amount of other debts due from the mortgagor to the mortgagee that should be paid out of the fund.''^ Such reference may be ordered to ascertain the validity and amount of claims against an estate in the hands of receivers ; ^ or to ascertain whether it would be for the benefit of an infant to begin an action for partition.^ § 4. Reference to Take and State an Account. — A reference to take and state an account is brought on and the pro- ceedings thereon are conformed to the practice formerly existing in the court of chancery .-"' Where an interlocutory 1 Code Civ. Proc. § 1015 ; 1859, man Co. c First M. E. Church, 29 Kirby i). Fitzpatrick, 18 N. Y. 484. Barb. 658 ; 18 How. 431. • Sup'm. Ct. 1859, Goodridge v. » Sup'm. Ct. 18ST, People v. Eem- New, 18 How. 189. ington, 45 Hun, 347 .• Chancery, 1836, 3 N. Y. Super. Chamb. 1852, Bow- Matter of Receivers of Globe Co. 6 man ». Sheldon, 8 Super. 607 ; Paige, 102 ; Chancery. 1836,. Hol- Sup'm. Ct. Sp. T. 1854, Van Zandt ?i. brook v. Receivers, 6 Paige, 2^0, Cobb, 10 How. 348; N.Y.Super.l867, Sup'm. Ct. 1873, Matter of Guardian Wheeler v. Falconer, 30 Super. 45. Sav. Ins. t. Bowling Green Bank, ■1 Sup'm. Ct. Sp. T. 1859, Came- 65 Barb. 275. ron V. Freeman, 10 Abb. 333. » Sup'm. Ct. Sp. T. 1856, Matter 6 Sup'm. Ct. Sp. T. 1856, Matter of Marsao, 15 How. 383. of Marsac, 15 How. 883. w Rule 85 ; Sup'm. Ct. 1874, Mun- 6 Sup'm. Ct. Sp. T. 1857, Disbrow dorl v. Mundorf, 1 Hun, 41 ; N. Y. V. Folger, 5 Abb. 53. Super. 1880, Hathaway t>. Russell, ' Sup'm. Ct. Sp. T. 1859, Beek- 46 Super 103. INTEELOCUTOKY EEFEKENCES. 95 decree directs a reference, or one is ordered by the court, the party obtaining the appointment is entitled to the car- riage of the proceedings ; ^ should he fail to proceed with due diligence the adverse party may move on affidavit and notice before the referee to have the further prosecution of the cause committed to him.^ The referee should in writ- ing fix a time and place of hearing and notice of the object of attendance, and deliver it to the party obtaining the or- der, for service on the adverse parties,^ but should not give such notice until the decree has been signed, or order en- tered, and a certified copy served on him.* Where the length of notice is not stated in the order or decree at least two days' notice should be given to resident parties, and a longer time where they reside at a distance.^ Under the present practice it has been held not strictly necessary that the notice by the referee should be in writing, though it is better so.^ The referee must be sworn.'' The accounting must proceed on the basis directed in the order ;^ if specific directions are not therein given, or if it be ordered that it proceed in the usual way, the procedure will be the same as in the late court of chancery." The prosecuting party has the right, if he insists, to have the account brought in in the form of debit and credit,'" and to examine the account- 1 Chancery, 1843, Quackenbush ®. *N. Y. Super. 1879, Hathaway v. Leonard, 10 Paige, 131; Chancery, Russell, 45 • Super. 538; 1853, Me- 1841, Holley s. Glover, 9 Paige, 9. Cracken v. Valentine, 9 N. Y. 42. 2 Chancery, IS'iS, Quackenbush «. ^N. Y. Super. 1851, "Wiggins. Leonard, 10 Paige, 131 ; Chancery, Gans, 6 Super. 646 ; Sup'm. Ct. 1841, Holley v. Glover, 9 Paige, 9; 1874, Mundorf «. Mundorf, 1 Hun, Chancery Rule 101 ; ante P. 85. 41 ; Sup'm. Ct. 1856, Palmer v. 2 Chancery Rule 100 ; ante P. 85; Palmer, 13 How. 363 ; Sup'm. Ct. Chancery, 1833, Manhattan Co. ■». Chamb. 1853, Brevoort ». Warren, Evertson, 4 Paige, 276. 8 How. 321 ; N. Y. Super. 1880, * Chancery, 1843, Quackenbush v. Hathaway «. Russell, 46 Super. 103. Leonard, 10 Paige, 131. w Chancery Rule 107, ante P. 89 ; 5 Chancery Rule 100; ante 7.85. N.Y. Super. 1851,Wiggin «. Gans, 6 B Sup'm. Ct. Sp. T. 1859, Sage v. Super. 646 ; Sup'm. Ct. 1856, Palmer Mosher, 17 How. 367 ; Sup'm. Ct. «. Palmer, 13 How. 363 ; N.Y. Super. Sp. T. 1853, Stephens v. Strong, 8 1879, Hathaway «. Russell, 45 Su- How. 339. per. 538; Sup'm. Ct. 1856, Ketchum 7 Code Civ. Proc. § 1016. s. Clark, 32 Barb. 319. 96 LAW OF EEFEEEES. ing party on interrogatories, written or otherwise.'' On the lirst hearing the referee should regulate the manner of taking the account, and may from time to time give such further directions as the case requires.^ Where each of the parties has charges against the other he may require each to present his account, verified by oath, according to the best of his information and belief, and that he does not know of any error or omission therein to the prejudice of any of the other parties in the cause. ^ The account must be stated for the period named, or to the time of the hear- ing.* Whei^e on being required to render an account the accounting party answers he is unable to do so because all the books and papers relating to the matter are in the hands of the adverse party, the referee is bound to take proof of the facts ;^ he may order the production of books and papers,^ and direct that they be deposited with him for inspection ; "^ but the party producing may seal up 1 Chancery Kule 107 ; ante P. 89 ; Chancery, 1833, Story v. Brown, 4 Page, 112 ; Chancery, 1817, Remsen ■D. Ilemsen, 2 J. Ch. 495. 2 ''At the time and place appointed in the summons for the hearing of the parties, the master shall pro- ceed to regulate, as far as may be, the manner of its execution ; as, for example, to state what parties are entitled to attend future proceedings, to direct the necessary advertise- ments, and to point out which of the several proceedings may properly be going on pari passu; and as to what particular matters interrogatories lor the examination of the parties appear to be necessary ; and whether the matters requiring evidence shall be proved by affidavit or by examin- ation of witnesses ; and in the lat- ter case, if necessary, to issue his certificate for a commission ; and if the master shall think it expedient so to do, he may then or upon sub- sequent attendance, and from time to time as circumstances may re- quire, fix the time within or at which any proceedings before him shall be had ; and he may proceed de die in diem, or by adjournment from time to time, as he may think proper." Chancery Rule 102 ; Chaneerj', 1833, Story V. Brown, 4 Paige, 1 12 ; Sup'm. Ct. 1856, Palmer «. Palmer, 13 How. 363. 3 Chancery Rule 107 ; anU P. 89 ; Chancery, 1833, Story i\ Brown, 4 Paige, 112; N. Y. Super. 1851, Wiggin v. Gans, 6 Super. 646. * 1874, Darling d. Brewster, 55 N. Y. 667 ; N. Y. Super. 1860, Crosbie ■B. Leary, 19 Super. 312. 5 N. Y. Super. 1863, McCartan «. Van Syekel, 23 Super. 694. « Code Civ. Proc. § 1017 ; N. Y. Super. Sp. T. 1867, North «. Piatt, 30 Super. 207 ; N. Y. Super. 1863, McCartan v. Van Syekel, 23 Super. 694; N. Y. Super. 1851, Frazee «. Phelps, 6 Super. 682. ' ' ' Where, by any decree or order of the court, books, papers or writ- ings are directed to be produced be- INTEELOCUTOEY BEFERENCES. 97 the parts that in no way relat.e to the subject of the exami- nation ; ^ it is a contempt of court for the adverse party to open the parts so sealed.^ The oath of the party that the portion sealed in no way relates to the subject of inquiry is sufficient in the first instance. If the adverse party shows any fair grounds for supposing such part contains evidence which is material, he may, on application to the referee, re- quire it to be opened.^ The ^arty producing the books may be examined to ascertain if all are brought in,* and may be compelled to permit a witness to examine them for the purpose of testifying therefrom.^ The referee may also require the adverse parties' exhibit in writing their ob- jections to the accounts so filed, and preclude them from going beyond these unless they shall furnish some reason- able excuse for their delay or neglect.^ Where some, but not all the parties appear, the reference may proceed, and the proceedings can be reviewed by those in default only on special application to the referee, and the payment of such cost as he may impose.'' Refusal to obey an order of the fore the master for the purposes of such decree or order, it shall be in the discretion of the master to de- termine what books, papers or writings are to be produced, and when and for how long they are to be left in his office ; or, in case he shall not deem it necessary that they should be left or deposited in his office, then he may give direc- tions for the inspection thereof by the parties requiring the same, at such time and in such manner as he shall deem expedient." Chancery Rule 103 ; Chancery, 1836, Kelly v. Eckford, 5 Paige, 548. 1 Sup'm. Ct. 1847, Titus v. Cor- telyou, 1 Barb. 444; Sup'm. Ct. Chamb. 1853, Brevoort v. "Warner, 8 How. 321 ; Chancery, 1831, Dias v. Merle, 3 Paige, 494. 2 Chancery, 1831, Dias v. Merle, 2 Paige, 494. 3 Sup'm. Ct. 1847, Titus v. Cor- telyou, 1 Barb. 444. < Sup'm. Ct. Sp. T. 1857, Brad- street V. Bailey, 4 Abb. 233 ; Sup'm. Ct. Sp. T. 1856, Ahoyke «. Wolcott 4 Abb. 41. 6 Ct. App. 1869, Sudlow «. Knox, 7 Abb. N. S. 411. « Chancery Rule 102, ante P. 85 ; Chancery, 1817, Remsen i>. Remsen, 2 J. Ch. 495 ; Chancery, 1833, Story V. Brown, 4 Paige, 112. ' "Where some, or one, but not all of the parties do attend the master at the time and place appointed, whether the same is fixed by the master personally or upon a sum- mons or warrant, the master shall be at liberty to proceed ex parte, if he thinks it expedient so to do, con- sidering the nature of the case ; and if he has proceeded ex pa/rte, such proceeding shall not in any manner be reviewed by him, imless, upon a special application to him for that purpose, by the party who was ab- sent, the master shall be satisfied 98 LAW OF EEFEREES. referee duly made is a contempt of court ; ^ but the referee has no authority to punish therefor.^ Under the old prac- tice the accounting party could be examined upon written interrogations or orally ; ^ but since parties have been al- lowed to testify in their own behalf the practice of examin- ing on written interrogations has fallen into disuse, and may be regarded as no longer applicable. The account duly verified is i^ruina facie evidence in favor of the account- ing party.* Upon his examination in support thereof he should produce receipts or other vouchers for all payments made ; ^ but when it is of long standing he may be allowed to prove his payments by his oath, when vouchers have been lost.^ In the surrogate's court no voucher is required from an executor or administrator for sums under twenty dollars, provided the payment is supported by the uncon- tradicted oath of the accounting party, and the total amount so expended does not exceed five hundred dollars •,"' so if he proves by his own, or another's testimony, that he did not take a voucher, or if taken it is lost or destroyed, he may be allowed any item the payment of which is satisfac- torily proved by the one to whom payment is made, or if he is dead, by any competent evidence other than his own ; ^ such party was not guilty of willful the ease may appear to him to re- delay or negligence, and then only quire ; the examination or evidence upon payment of all costs occasioned being taken down at the tune by by his non-attendance ; such costs the master, or by hi£ clerk in his to be certified by the master at the presence, and preserved, in order time, and paid by the party or his that the same may be used by the solicitor before he shall be permitted court if necessarj'." Chancery Rule, to proceed on the warrant to re- 105; N. T. Super. 1851, "Wiggin v. view ; and every summons or war- Gans, 6 Super. 646. rant to attend before a master shall ^ Chancery Rule 107 ; ante P. 89. be considered peremptory." Chan- ^ 1 Barb. Ch. Pr. p. [510] ; Chan- cery Rule 104. eery, 1817, Remsen b. Remsen, 2 J. 1 Ct. App. 1869, Sudlow «. Knox, Ch. 495 ; N. Y. Super. 1851, Wiggin 7 Abb. N. S. 411. v. Gans, 6 Super. 646. 2CodeCiv. Proc. §§855, 856. 6 chancery, 1817. M. E. Church ^ " The master shall be at liberty B. Jaques, 3 J. Ch. 77. to examine any witness or party, or ' Code Civ. Proo. § 3734 ; Wilcox any creditor or other person coming «. Smith, 26 Barb. 316. in to claim before him, either upon *> Chancery, 1817, Remsen «. Rem- written interrogatories or mva voce, sen, 2 J. Ch. 495. or in both modes, as the nature of INTERLOCUTORY REFERENCES. 99 Chancellor Kent was of the opinion that items below twenty dollars, not exceeding five hundred in all, should be allowed though no vouchers were produced.^ An admis- sion, oral or written, may dispense with the necessity for a voucher.^ It will be assumed that the date in the books of the accounting party are correct ; " but either party may show errors.* The general form of the report is the same as in other interlocutory references.^ The schedules should distinctly state the items allowed ;•* but where the referee was directed to ascertain the moneys due, and which of the goods in the hands of a receiver belonged to the trust estate, and he reports that all save a small portion, valued at a nominal sum, was owned by the trust a separa- tion into items is unnecessary." Partners cannot be allowed for services in the care and management of the business ; ^ nor, in the absence of a special agreement can one be allow- ed for services in settling the affairs of the firm ; ^ nor his expenses when abroad on his own business.^" If a part- ner has used partnership funds for his own benefit he must account for profits and interest. ^^ Interest should be charged from the date of dissolution of a partnership, and the balance adjusted as of that date.^^ Scandalous or im- pertinent matter in any account, state of facts, or affidavits introduced before the referee, may be stricken out on mo- tion by the referee. To his refusal to strike out such mat- ter an exception will lie, and his decision may be reviewed on the hearing on the report.'^ If the account, state of 1 Chancery, 1817, Remsen «. Rem- Robinson, 1 Johns. Ch. 157 ; Chan- sen, 2 J. Ch, 495. eery, 1818, Bedford «. Kimberly, 3 2 Chancery, 1817, M. E. Church J. Ch. 43; Chancery, 1839, Doug- «. Jaques, 3 J. Ch. 77. herty«. Van Nostrand, Hoff. Ch. 68. 3 Chancery, 1816, Stoughton i). « N. Y. Super. 1853, Coursen «. Lynde, 3 J. Ch. 209. Hamlin, 9 Super. 513. 4 Chancery, 1832, Heartt «. Com- i° Chancery, 1823, Munford v. ing, 3 Paige, 566. Murray, 6 J. Ch. 1. 5 Ante P. 88. " Chancery, 1815, Stoughton v. 6 Sup'm. Ct. 1874, Spooner v. Le- Lynch, 1 J. Ch. 467. fevre, 3 T. & C. 666. '^ Chancery, 1816, Stoughton v. ' Com. PI. Sp. T. 1878, Hooley v. Lynch, 2 J. Ch. 209. Gieve, 9 Abb. N. C. 8. is "If a party wishes to complain of 8 Chancery, 1814, Franklin v. any matter introduced into any state 100 LAW OF BEFEEEES. facts or other proceedings are insufficient the defect may be corrected, and the referee's ruling thereon may be re- viewed in the same manner.^ Separate reports may from time to time be made as the referee may deem expedient. § 5. Reference to take Depositions to be Kead on Motion. — A referee may be appointed to take the deposition of a person not a party to be read on a motion in a court of record upon proof, by affidavit that the applicant intends to make, or oppose a motion, specifying its nature, that the affidavit sought is necessary thereon, and that the person referred to has refused to make an affidavit of facts within his knowledge.^ No notice of motion is necessary, nor can the opposing party move to vacate the order.^ It will usually be sufficient if the moving affidavit is made by the attor- of facts, affidavit, or other proceed- ings before the master, on the ground that it is scandalous or im- pertinent, or that any examination of a party before him as insufficient, such party shall be at liberty to file exceptions thereto with the master ; and without any order of reference, he may take out a warrant for the master to examine the matter upon such exceptions, and the mast-er shall have authority to expunge any such matter which he shall find to be scandalous or impertinent. And where the matter is excepted to as scandalous or impertinent, if the master disallows the exceptions, his decision thereon shall be final as to the exreptions which are disallowed ; but this shall not preclude the party from insisting upon the impertinence at the hearing of the cause, or up- on any subsequent proceeding found- ed on the master's report upon the reference, or upon the taxation of the general costs of the cause or of the reference And in deciding on the suffloienoy or insufficiency of the examination of a party or of an an- swer to a bill, the master shall al- ways take into consideration the relevancy or materiality of the state- ment or question referred to in the exception. On exceptions to the master's report, or to his certificate of the sufficiency or insufficiency of an examination, the parties shall be confined to the objections taken be- fore the master. Chancery Rule 106. 1 In all matters referred to a mas- ter, he shall be at liberty, upon the application of any party interested, to make a separate report or reports from time to time, as he shall deem expedient; the costs of such sepa- rate reports to be in the discretion of the court. And where the master shall make a separate report of debts or legacies, he shall be at lib- erty to make such certificate as he thinks fit with repect to the state of the assets ; and any person interest- ed shall thereupon be at liberty to apply to the court, as he shall be advised. Chancery Rule 108. 2 Code Civ. Proc. § 885. 3 Sup'm. Ct. 1874, McCue v. Tri- bune Ass'n, 1 Hun. 467 : N. Y. Su- per. 1867, Brooks v. Schultz, 28 Su- per. 656. INTEELOCUTOEY EEFEEENCES. 101 ney.^ It sliould show that a motion is, or is about to be made, that the person referred to has knowledge of facts pertinent on said motion, that he has refused to make affi- davit thereto, should show with reasonable certainty the subject as to which the affidavit is required, and how, and in what manner the affidavit sought is necessary.^ An al- legation that he believes that facts are within such person's knowledge, which, in his opinion, are necessary, is insuffi- cient.^ Before the application is made an affidavit should be drawn and presented with a request to sign,* but this is not indispensable.^ Refusal for several successive days to make the affidavit until he could consult his counsel, is a refusal.^ The order should require the person to attend and be examined before the court, or a referee, at a time mentioned therein, or at such time and place as the referee shall direct ; " and since the order can be made only for the purposes of the motion, and not to obtain evidence to be used on the trial for " fishing " purposes,^ should limit the scope and extent of the examination to be had. The order cannot be vacated on motion of the adverse party ; ^ it may be on motion of the party to be examined,^" but not after he has appeared and submitted to an examination.''^ The 1 N. Y. Super. Sp. T. 1867, Moses 8 Sup'm. Ct. Sp. T. 1868, Fisk v. s). Banker, 30 Super. 131. Chicago Co. 3 Abb. N. S. 430; - yode Civ. Proc. § 885 N. Y. Su- Sup'm. Ct. Sp. T. 1873, Erie Co. «. per. Sp. T. 1867, Moses v. Banker, Gould, 14 Abb. N. S. 279 ; Sup'm. 30 Super. 131 ; Sup'm. Ct. Sp. T. Ct. Sp. T. 1874, Dauohy v. Miller, Matter of Bannister, 1 Law Bui. 9 ; 15 Abb. N. S. 100. Sup'm. Ct. Sp. T. 1874, Dauchy i>. ^ Sup'm. Ct. Sp. T. 1870, Ramsay Miller, 16 Abb. N. S. 100. «. Gould, 39 How. 62; N. Y. Super. 3 N. Y. Super. 1873, Corkey v. 1867, Brooks v. Sohultz, 28 Super. Huid, 36 Super. 42; 14 Abb. N. S. 656; Sup'm. Ct. 1874, McCue «. 183 ; 45 How. 70. Tribune, 1 Hun, 469 ; contra Moses * Sup'm. Ct. Sp. T. 1868, Fisk v. v. Banker, 30 Super. 131. Chicago Co. 3 Abb. N. S. 430; i" Sup'm. Ct. 1874, MeCue ». Tri- Sup'm. Ct. Sp. T. 1873, Erie Co. ■». bune, 1 Hun, 469, Sup'm. Ct. Sp. T. Gould, 14 Abb. N. S. 279. 1870, Ramsay «. Gould, 89 How. 62; 5 Sup'm. Ct. Sp. T. 1874, Dauchy Sup'm. Ct. Sp. T. 1868, Erie Co. v. V. Miller, 16 Abb. N. S. 100. Champlain, 35 How. 73. 6 Sup'm. Ct. 1874, Rogers v. Du- "Sup'm. Ct. 1874, McCue v. Tri- rant, 3 T. & Co. 676. bune Co. 1 Hun, 469 ; Sup'm. Ct. "' N. Y. Com. PI. Sp. T. 1864, Sp. T. 1868, Brie Co. «. Champlain, Clark ». Brooks, 36 Hun, 354. 35 How. 74. 102 LAW OF REFEREES. referee must be sworn, and must fix the time and place of liearing, as in other interlocutory references.^ If the per- son to be examined is a resident of the state, he cannot be compelled to attend in any county other than the one in which he resides, or in which he has an office for personally transacting his business, or if a non-resident, he can be compelled to attend only in the county in which he is served, unless for special reasons stated in the affidavit the order otherwise directs.^ The adverse party is not entitled to notice of hearing. He can take no part in the examina- tion ; ^ the referee is appointed to take, not to make, the examination.* Refusal to answer proper and pertinent questions may be punished by proceedings for contempt.^ The affidavit on examination should be limited to the sub- ject of the motion.^ The person to be examined may ap- pear, and make, and verify his statement in narrative form, or the examination may be taken by question and answer,'' but a general examination on the merits of the action wiU. not be allowed,^ nor a fishing examination,^ nor can books and papers be examined.^" If the witness does not know the facts sought to be proved, he cannot be compelled to take any means to inform himself, nor to produce anything that contains such information.^^ The referee has no power to pass on objections to the evidence ;''^ he should take all that is offered, and leave the question of competency t^ be determined by the court.'^ i^rafe, P. 84. 8Sup'm. Ct. Sp. T. 1873, Erie 2 Code Civ. Proc. § 886. Co. ii. Gould, 14 Abb. N. S. 279 ; 3 Sup'm. Ct. 1874, McCue v. Tri- Sup'm. Ct. Sp. T. 1874, Dauchy v. bune, 1 Hun, 469 ; Sup'm. Ct. Sp. Miller, 16 Abb. N. S. 100 ; N. Y. T. 1868, Eri Co. v. Champlain, 35 Super. Cockey v. Hurd, 36 Super. 43. How. 73 ; Sup'm. Ct. Sp. T. 1873, » N. Y. Super. Sp. T. 1867, Moses Erie Co. v. Gould, 14 Abb. N. S. 279; b. Banker, 30 Super. 181 ; Sup'm. contra Brooks e. Schultz, 28 Super. Ct. Sp. T. 1868, Fisk e. Chicago Co. 656 ; 3 Abb. N. S. 134. , 3 Abb. N. S. 430. 4 Code Civ. Proc. § 885. i" Sup'm. Ct. Sp. T. 1868, Fisk «. 6 Code Civ. Proc. § 885; Com. Chicago, 3 Abb. N. S. 430. PI. Sp. T. 1864, Clark v. Brooks, " Sup'm. Ct. Sp. T. 1868, Fisk «. 26 How. 254. Chicago Co. 3 Abb. N. S. 430. sSup'm. Ct. Sp. T. 1872, Erie I2i873, Foxi'. Moyer,54N. Y. 125. Co. V. Gould, 14 Abb. N. S. 279. « Sup'm Ct. Sp. T. 1862, Scott v. ' Sup'm. Ct. Sp. T. 1872, Erie Co. Williams, 23 How. 393. V. Gould, 14 Abb. N. S. 279. INTERLOCUTORY REFERENCES. 103 § 6. Reference of ftuestion of Fact arising on Motion.- — A ques- tion of fact arising on motion may be referred/ but tlie prac- tice is objectionable ;^ it will not be ordered on motion to vacate an order of arrest where the affidavits are full and complete.^ nor will a referee be appointed to take a deposi- tion or affidavit to be used on an ex parte motion. * The court may order the reference, of its own motion, or on mo- tion of either party ,^ and may invest the referee with all necessary power,^ may prescribe what notice of hearing shall be given, may order the personal attendance of par- ties and witnesses, direct the order of examination, and forbid an application for a commission to examine witnesses without the state ; '' on such motion the witnesses may be cross-examined ; '' the reference may be ordered when the affidavits are not sufficiently definite and certain ; ^ a refer- ence may be ordered on motion to discharge from arrest,^" to vacate an attachment,^^ to satisfy a judgment,^^ to cancel a judgment entered on confession,^'' for an attachment against an attorney for not paying over money,''* to report facts as to an attorney's lien,^^ to mark a judgment secured on appeal,^^ or to set aside a judgment against a lunatic,^''' or where the validity of an assignment occurs on question 1 Code Civ. Proo. § 1015. 320 n. ; N. Y. Super. Sp. T. 1858,- sSup'm. Ct. Sp. T. 1865, Hewlet Stelle «. Palmer, 7 Abb. 181; Buf. •B. Rogers, 1 Abb. N. S. 27. Super. Sp.T.1879, Stafford B.Ambs, 3 N. Y. Super. Sp. T. 1858, Stelle 8 Abb. N. C. 237. «. Palraer, 7 Abb. 181. » N. Y. Super. 1876, Burnett «. 4 Sup'm. Ct. 1874, Hart v. Hatch, Snyder, 41 Super. 342. 1 Hun, 288. ^^ i858, Pendleton v. "Weed, 17 N. 5N. Y. Super. 1876, Burnet v. Y. 72; Ct. App. 1855, Meyer «. Lent, Snyder; 41 Super. 342. 7 Abb. 325. « Sup'm. Ct. 1853, Meyer v. Lent, i^ igeg, Dwight «. St. John, 35 N. 16 Barb. 588; Sup' m.Ct. Chamb. Y. 303. 1873, Tammlssen v. Clause, 67 Barb. i'' Sup'm. Ct. Sp. T. 1855, Barber 430. «. Case, 12 How. 351. ' Sup'm. Ct. 1886, Stubbs u. Rip: 16 1872, Marshall ». Meach, 51 N. ley, 39 Hun, 620. Y. 140 ; Sup'm. Ct. 1877, Brown o. 8 Sup'm. Ct. 1853, Meyer ». Lent, Mayor, 9 Hun, 587. 16 Barb. 538. "* Sup'm Ct. 1856, Munn «. Bar- 9 Ct. App. 1855, Meyer ». Lent, 7 num, 3 Abb. 409. Abb. 335. " Sup'm. Ct. 1860, Demelt •». 10 Sup'm. Ct. Sp. T. 1857, Barron Leonard, 19 How. 140 ; 11 Abb. V. Sanford, 14 How, 443; 6 Abb. 353. 104 LAW OF EEFEBEES. on a motion.^ An application for a mandamus to compel transfer agents of a foreign corporation to allow stockhold- ers to examine the books of such corporation, a reference may be ordered to take proof of the matters set forth in the affidavits.^ A party cannot be compelled to submit to an examination on such reference.^ The moving party may be compelled to pay the fees of the referee ; * no ex- ceptions to the report should be filed. ^ The findings of fact are not conclusive, they are required only to inform the conscience of the court ; ^ nor is the opinion or conclu- sion of the referee binding.'' The order of reference cannot be vacated by the adverse party on the ground that the de- cision of the motion is thereby delayed,^ nor on the ground that no order was actually entered." The adverse party may enter it if the moving party does not within twenty-four hours.^" § 7. Beference to Kxamine Party before Trial. — A referee may be appointed to take the deposition of a party or witness before trial. The order must require the party or person to appear before the judge or before a referee named in the order, for the purpose of taking the examination, at a time and place therein specified,''' the examination of a 1 1877, Conklin v. Taylor, 68 N. Y. 140 ; 1874, People v. D. & C. R. Y. 231. R. Co. 58 N. Y. 153. 2N. Y. Super. 1876, Burnett «. ' Sup'm. Ct,1865,HewIet«.Reyns, Snyder, 41 Super. 343; Ct. App. 1 Abb. N. S. 37; 1874, Austin v. 1855, Meyer «. Lent, 7 Abb. 235 i Ahearne, 61 N. Y. 6 ; Sup'm. Ct. 1874, King v. Leighton, 58 N. Y. Chamb. 1887, Kelly v. Charlier, 18 383 ; see Stubbs v. Ripley, 39 Hun, Abb. N. C. 416 ; Sup'm. Ct. 1886, 620. Hodges i). Martin, 45 Hun. 38 ; 1873, 3 Sup'm. Ct. 1887, People v. St. Marshall «. Meach, 51 N. Y. 140. Louis Co. 44 Hun, 552; 1873, Dwight ' ^uf . Super. Sp. T. 1879 Staf- v. St. John, 25 N. Y. 203. *°^'i "■ ^"^^^^ ^ ^^^- N- C. 337. Sup m Ct. Sp T. 1873 Tam- j^^^ ^^ j^^^^ g j^^^ ^_ ^ 237. missen .. Clause, 67 Barb. 430. ,„ ^^j g^p,^_ gp ^ ^^^^^ ^^^_ » Sup'm, Ct. Chamb. 1887, Kelly ford v. Ambs, 8 Abb. N. C. 237; 1). Charlier, 18 Abb. N. C. 416; gup'm. Ct. Sp. T. 1861, Peet v. Sup'm Ct. Sp. T. 1865, Hewlet v. Cowenhoven, 14 Abb. 56; Sup'm. Reyns, 1 Abb. N. S. 27 ; Sup'm. Ct. ct. 1876, Matter of Rhinebeok Co. 8 1887, Martin ». Hodges, 45 Hun, 38. j-jun 34. s 1873, Marshall v. Meach, 51 N. » Code Civ. Proo. § 873. INTERLOCUTORY REFERENCES. 105 party or an expected party is subject to the same rules as if he was examined on the trial.^ The referee must take the examination at the time and place specified in the order. He may from time to time adjourn the examina- tion to another day and to another place in the same county.^ Any question competent on the trial is competent on this examination.^ Objection to the form of the ques- tions must be made when the deposition is taken, otherwise it will be deemed waived.* Whether discovery of books and papers can be had on the examination of a party is an open question. It has been held in the supreme court and the city court of Brooklyn, and in the marine court of New York, that it could not,^ the contrary has been held in the New York superior court.^ The superior court of New York has also held that while production of books could be compelled, inspection thereof could not ; '' but when a party under examination has voluntarily referred to his books he can be compelled to produce them or to disclose their contents.^ The referee must insert in the testimony every answer or declaration of the person examined which either party requires. If the person refuses to answer, he must report the fact to the court or judge who must deter- mine whether the question is relevant or the witness is bound to answer.' "Defendant cannot be compelled to produce letters to enable plaintiff to see if they are rele- vant.^'^ It is not necessary that the referee write down the evidence. It is sufiicient that after administering the proper oath he allowed another to write down the testi- mony, and after the examination is closed he read it over 1 Code Civ. Proc. § 880. Court of N. Y. Sp. T. 1881, Black 2 Code Civ. Proc. § 876. '^ Curry, 1 Civ. Proc. 193. ,o , ^. lor,. T. T, „ 6N. y. Super. Ct. Sp. T. 1878, Butler, 2 Hun, 284; 4 T. & C. .,^ ^ ^^^^^ ^^ ^^ ^ ^^^^^ McGuffln V. Binsmore, 4 Abb. N. C. i 1877, Hubbard «. Haughian, 70 241. N. Y. 54. 8 Sup'm Ct. Chamb. 1880, Morri- 5 Sup'm. Ct. Chamb. 1877, Martin son i). McDonald, 9 Abb. N. C. 57 n. «. Spofford, 3 Abb. N. C. 125; City 9 Code Civ. Proc. § 880. Court, Brooklyn, 1878, Parsons v. i" N. Y. Super. Sp. T. 1880, New- Belden, 9 Abb. N. C. 54; Marine hall «. Appleton, 2 Law Bui. 35. 106 LAW OF EEFEEEES. to the party testifying that the latter may know whether his answers have been correctly taken down.' The depo- sition, when completed, must be carefully read to and svb- scribed by the party examined ; must be certified by the referee taking it, and within ten days thereafter filed in the office of the clerk, or if no action is pending, in the office of the clerk of the county in which it was taken, together with the stipulation or order under which it was taken, the affidavit upon which the order was granted, and proof of the service of a copy of the order and of the affidavit.^ The certificate must show affirmatively that the parties ap- peared, that the proper oath was administered, that the deposition was read over to the witness by or in the pres- ence of the officer taking it before signature, and that the witness did in fact sign the same.^ It is not essential that the referee should certify the deposition was " carefully " read. The court will presume that the law was complied with.* § 8. Reference to take Proof on application for Judgment by De- fault. — A reference may be ordered on application for judg- ment by default,^ the order may direct that the report of the referee be returned to the court for further action, or it may omit such direction, but such reference cannot be or- dered in actions for wrongs.^ The hearing is brought on, and the proceedings thereon are the same as in other in- terlocutory references.'' It must be had in the county named in the complaint as the place of trial.* When the defaulting party is not shown to have any actual knowledge of the facts, his absence is no ground for postponing the hearing ; ^ he may call witnesses, and prove any matter in 1 Com. PI. 1859, McDonald v. Gar- Ct. Chamb. 1849, Rickards v. Swit- rison, 9 Abb. 34; 18 How, 249; zer, 3 How. 413; N. Y. Sup'm. Ct. Sup'm. Ct. 1877, Foster i>. Bullock, Sp. T. 1856, Saltus «. Kip, 2 Abb. 13 Hun, 200. 383 ; Com. PI. 1880, Thompson v. " Code Civ. Proc. § 880. Finn, 11 Week. Dig. 183. 3 Sup'm. Ct. 1877, Foster v. Bui- ' Ante, p. 84. look, 12 Hun, 300. ^ Sup'm. Ct. Sp. T. 1861, Brush v. * N. Y. Super. 1857, Sheldon «. Mullany, 13 Abb. 344. Wood, 15 Super. 367. 9 Sup'm. Ct. Sp. T. 1873, Samuels 6 Code Civ. Proc, § 1315. «. Bryant, 14 Abb. N. S. 443. 6 Code Civ. Proc. § 1315 ; Sup'm. INTEBLOCUTOEY EEFEEENCES. 107 mitigation of damages/ but cannot prove a partial defense.^ A report must be made and filed as part of the judgment roll.3 § 9. Reference to Sell Chattels on Foreclosure of a Lien thereon. — A referee may be appointed to sell chattels upon fore- closure of a lien thereon. The judgment must specify the amount of the lien, and direct a sale to satisfy the same, and the costs, if any, by the referee or some officer appoint- ed therein, in like manner as where a sheriff sells personal property by virtue of an execution, and the application by him of the proceeds of the sale, less his fees and expenses, to the payment of the costs of the action. It must also provide for the payment of the surplus to the owner of the chattel, and for the safe-keeping of the surplus, if neces- sary, until it is claimed by him.* At least six days' notice of the time and place of sale must be given, by posting conspicuously written or printed notices thereof in at least three public places of the town or city where the sale is made ; ^ and must be made within a reasonable time after the entry of the order or decree.^ The referee may, from time to time, postpone the sale, and should do so if he sees that otherwise the property will be sacrificed.'' He can- not, for his own benefit, bind himself by a contract that would prevent him from obeying the judgment.^ The death of a creditor after the sale is ordered does not oper- ate as a stay.' The property must be offered in such lots and parcels as are calculated to bring the highest price. Except where the officer is expressly authorized by Art. 2, IN. Y. Super. Ct. Sp. T. 1858, 5 Cow. 390; Ct. Err. 1823, McDon- Saltus 1). Kip, 2 Abb. 382; Sup'm. aid v. JSTeilson, 2 Cow. 139. Ct. Cir. 1848, Warren v. Kenny, N. ' Ct. ol Err. 1823, McDonald ». Y. 3 How. 333. • Neilson, 2 Cow. 139. 2 N. Y. Super. 1857, Ford v. Da- « Ct. of Err. 1823, McDonald v. vid, 14 Super. 569. Neilson, 2 Cow. 139 ; Sup'm. Ct. '^ N. Y. Super. 1857, Am. Ex. B'k 1862, Perkins v. Proud, 63 Barb. o. Smith, 6 Abb. 1. 430. i Code Civ. Proo. § 1739. '■* Sup'm. Ct. 1866, Becker v. Beck- 5 Code Civ. Proc. §1429. er, 47 Barb. 497; 1871, Wood v. B Sup'm. Ct. 1836, Russell v. Gibbs, Moorhouse, 45 N. Y. 368. 108 LAW OF EEFEBEES. Title 2, Chap. XIII , of Chapter 448, L. 1876, to sell prop- erty not in his possession, personal property must not be offered for sale unless it is present, and within the view of those attending the sale ; ^ but where several articles are sold, subject to a chattel mortgage, the whole must be sold as one lot.^ The property must be designated, and specifi- cally pointed out ; ^ otherwise the sale is invalid.* That all the property was not present, does not affect the validity of the sale of what was shown .^ Where the decree is directed against one member of a firm, only his interest in the firm can be disposed of. If the whole interest is sold, the referee and all who participate are liable as trespass- ers.^ The sale must be for cash ; until the money is paid the sale is invalid." If the referee takes the check of the purchaser, and gives him possession of the property, he is liable for the amount of the bid.^ The referee cannot pur- chase at the sale ; ^ but plaintiff may.''" Goods may be de- livered to him without payment,^^ and a purchase to the amount of the judgment operates as a satisfaction.^^ To pass the title as against creditors, there must be a delivery, and change of possession.^^ While the referee may take indemnity from the plaintiff, he cannot indemnify bidders.'* If the bidder refuses to pay, the referee must avoid the sale, 1 Code Civ. Proo. § 1428. ' Sup'm. Ct. 1880, Holmes v. 21861, Manning «. Monaghan, 23 Richmond, 19 Hun, 634. N. Y. 539 ; Sup'm. Ct. 1847, Tefft » 1882, Robinson d. Brennan, 90 -B. Barton, 4 Den. 171. N. Y. 208. " Sup'm. Ct. 1848,"Waring v. Loom- " Sup'm. Ct. 1830, Jackson v. An- is, 4 Barb. 484. derson, 4 Wend. 474 ; Sup'm. Ct. * Com. PI. 1854, Breese u.Bunge, 1862, Ball i). Pratt, 36 Barb. 402. 2 E. D. S. 474 ; Sup'm. Ct. 1817, i" Sup'm. Ct. Sp. T. 1847, Weaver Sheldon v. Soper, 14 Johns. 352. ■». Toogood, 1 Barb. 288. 5 Sup'm. Ct. 1817, Liliondoll v. "Sup'm. Ct. 1821, Nichols «. Doe, 14 Johns. 222. Ketoham, 19 Johns. 84 ; Sup'm. Ct. 6N. Y. Super. 1854, Bates v. 1826, Russell s.'Gibbs, 5 Cow. 390. James, 10 Super. 45 ; N. Y. Super. 12 Sup'm. Ct. Sp. T. 1847, Weaver 1854, Haring «. Hoppock, 10 Super, v. Toogood, 1 Barb. 238. 20; Sup'm. Ct. 1846, Walsh «. i^ igsi, stimson e. Wrigley, 86 N. Adams, 3 Den. 125; Sup'm. Ct. Y. 332. 1874, Turgwell v. Bussing, 2 Hun, " Sup'm. Ct. 1862, Ball v. Pratt, 160; 48 How. 89; Sup'm. Ct. 1841, 36 Barb. 402. Waddell v. Cook, 2 Hili, 47. INTEELOOUTOBY KEFEEENCES 109 and re-sell ; or postpone the sale, giving notice, and make a new one at a subsequent time.- The sale must be at public auction, between the hours of nine o'clock in the morning and sunset.^ There are no express provisions in the code, nor in the rules of court regulating the procedure at the sale. Since the proceeding is similar to a sale under the foreclosure of a mortgage upon real property, a proced- ure as near as may be in accordance therewith w'ould un- doubtedly be safe ; ^ and so of a bill of sale of the property and the report of the referee.* The fees of the referee on such sale are nowhere prescribed. If, as in sales on fore- closure of a mortgage on real property, or in dower, or par- tition, they are the same as those of a sheriff for perform- ing similar duties, the referee is entitled in the counties of New York, Kings and Westchester to two and one-half per cent, on the first two hundred and fifty dollars, and one and one-quarter per centum on the residue ; in all other counties in this state the fees are three and one-half per centum on the first two hundred and fifty dollars, and two per centum on the residue.^ The referee is also entitled to two dollars for advertising the sale.^ These fees are in full for all his services,'^ including the commissions of the auctioneer, if any be employed.^ In one unreported case the fees of the referee to sell were taxed as in sale of real property under foreclosure of a mortgage thereon, not in- cluding auctioneer's fees. 1 1883, Robinson v. Brennan, 90 « Code Civ. Proo. § 3307, P. 8. N. Y. 208. ' 1874, Crofut v. Brandt, 58 N. Y. 2 Code Civ. Proc. § 1384. 106; 1883, McKeon i). HorsJall, 88 3 See P. 157 et seg. N. Y. 439. « See P. 169 et seq. 8 i883, McKeon i). Horsfall, 88 N. 5 Code Civ. Proc. § 3307, P. 7. Y. 439. 110 LAW OF EEFEEEES. PART III. Kefereuces in Special Proceedings. CHAPTEE I. GENERAL PROVISIONS APPLICABLE THERETO. A reference may be ordered in a special proceeding even in cases not expressly authorized by statute.* Such refer- ences are generally discretionary, and are usually ordered by the court, or by a judge thereof of his own motion ;^ if made in pursuance of a statute, such statute must be strictly followed.^ A reference may be ordered in proceedings un- der the assignment act,* in mandamus proceedings,® in pro- ceedings supplementary to execution,^ in disputed claims against the estate of a decedent,'^ in proceedings to sell the real estate of an infant or lunatic,^ in proceedings under the assessment act of 1874,' and in any other case where the facts on a summary application are not sufficiently clear.'" The order is sometimes made by the judge at 1 Sup'm.Ct. 1875, Matter of Bohm, People s. D. & C. R. R. Co. 58 N. 4 Hun, 558; 1862, Dwight v. St. T. 1.52 ; 1862, Dwight J). St. John, 25 John, 25 N. Y. 203. N. Y. 205 ; Sup'm. Ct. 1887, People 2 Code Civ. Proc. § 2434; Com. PI. d, R. R. Co. 44 Hun, 552. 1878, Matter of Bonner, 8 Daly, 75; eCode Civ. Proc. § 2434; Sup'm. 1862, Dwight v. St. John, 25 N. Y. Ct. 1885, Hulsam n. Wiles, 11 How. 203. 446. 3 Com. PI. Sp. T. 1887, Matter of ' 2 R. S. 88, § 41. Ives, Daily Reg. Sept. 14, 1887 ; » Code Civ. Proc. § 2354. 1878, Matter of Valentine, 72 N. Y. 9 Sup'm.Ct. 1875, Matter of Bohm, 184. 4 Hun, 558. ^ L. 1877, eh. 466 §§ 21, 26; Com. i» 1862, Dwight v. St. John, 25 N. PI. 1878, Matter of Bonner, 8 Daly, Y. 203; Com. PI. 1878, Matter of 75. Bonner, 8 Daly, 75 ; Code Civ. Cir. 5 Code Civ. Proc. § 2083 ; 1874, § 2546. GENEEAL PROVISIONS APPLICABLE THERETO. Ill chambers/ sometimes by the court." In either event it should distinctly state the object and scope of the refer- ence. The referee has no power beyond that expressly conferred.^ He must possess the same quahfications as one appointed for the trial of issues; is entitled to the same compensation, and must be sworn before proceeding ■with the hearing.* The oath may be waived by written stipulation or orally, but if orally such waiver must be en- tered in the minutes of the referee,^ or as held in some cases by proceeding before the referee without objection.^ If there are infants who may be affected by the result, there can be no waiver.'' The order may fix the time and place of hearing,® or it may leave it to be fixed by the ref- eree ; ^ if fixed by the referee it is governed by the same rules as an interlocutory reference.*" Subpoenas to compel the attendance of witnesses and the production of books, documents and papers, must be issued under the hand of the referee ; ** if issued out of the court in which the pro- ceeding is pending, it is invalid.*^ The court or a judge thereof alone has authority to punish disobedience of the subpoena.*'* The method of procedure on the reference de- pends upon the form of the order. If it is a reference to take and report the evidence the referee has no authority to pass upon objections thereto, he must take all that is offered. To make the objections available they must be 1 Code Civ. Proo. § 3434. 10 Daly, 15 ; Sup'm. Ct. Sp. T. 1878, 2 Com. PI. 1878, Matter of Bon- Browing v. Marvin, 5 Abb. N. C. ner, 8 Daly, 75 ; Code Civ. Proc. § 385. 2546. « Com. PI. Sp. T. 1878, Nason v. =* Sup'm. Ct. 1860, Bonner ». Mc- Luddington, 55 How. 342. Phail, 81 Barb. 106 ; Com. PI. Sp. T. ' Code Civ. Proc. § 1016. 1887, Matter of Ives, Daily Reg. ^ Sup'm. Ct. 1886, Stubbs v. Rip- Sept. 14, 1887 ; 1858, McCrackeu v. ley, 39 Hun, 630 ; Sup'm Ct. 1853, Valentine, 9 N. Y. 42. Meyer v. Lent, 16 Barb. 588 ; Code 1 AnU, p. 6 ; Com. PI. Sp. T. Civ. Proc. § 3434. 1880, Matter of Schaller, 10 Daly, "Code Civ. Proc. § 3854. 57 ; Com. PI. 1881, Matter of Fair- i" AnU, p. 86. child, 10 Daly, 74 ; Code Civ. Proc. " Code Civ. Proo. § 854. § 1016 ; Com. PI. Sp. T. 1878, Mat- 12 Sup'm. Ct. 1885, People -c. Ja- ter of Vilmar, 10 Daly, 15. cobs, 37 Hun, 245. 5 Code Civ. Proc. § 1016 ; Com. w Code Civ. Proc. § 856. PI. Sp. T. 1878, Matter of Vilmas, 112 LAW OP EEFEEEES. renewed wlaeii tlie report is filed.^ If to take and state an account, he must, if requested, follow the old chancery practice.^ Unless otherwise expressly ordered. He may retain his report until his fees are paid.^ Section 1016 of the code has no application to special proceedings.* The form of the report depends upon the character of the refer- ence. It must in all cases contain the title of the cause, must be addressed to the court,' must recite the order and contain an epitome, but not the whole of its contents.^ Except in the surrogate's court ^ the testimony of the wit- nesses must be signed by them and filed with the report,'' as the report, when the referee is to report the evidence,^ as a separate schedule when more than the evidence is to be reported.'' In the latter case the report will consist of two parts, the body and the schedules ; the body contain- ing the report proper, referring to the schedules for de- tailed information.^" If the statute or the rules of court prescribe the form they must be strictly followed." The proTisions of rule 30 requiring exceptions to the report to be filed within eight days after filing the report and notice thereof, applies only to those cases where the referee is to decide between parties. It has no application to references ordered by the court for its own information.** A referee under the assignment act is a competent judge of the value of the services of the assignee.*^ On application by an as- signee for leave to compromise a claim the court may send the matter to a referee, and require notice to be given cred- 1 1873, Fox «. Moj'er, 54 N. Y. » 1 Barb. Ch. Pr. (548). 125. 1" 1 Barb. Ch. Pr. (548). 2 For procedure on accounting, i' Com. PI. Sp. T. 1880, Matter of see ante, p, 94. Phillip, 10 Daly 47 ; Com. PI. 1878, 8N. Y. Surr. 1885, Matter of Matter of Dryer, 10 Daly, 8; Com. Kraus, 4 Dem. 217. PI. Sp. 1880, Matter of Schaller, 10 •1 Sup'm. Ct. 1864, Godding v. Daly, 57. Porter, 17 Abb. 374. 12 Sup'm. Ct.Sp. T. 1883, Matter 5 1 Barb. Ch. Pr. (548). of Att'y-Gen. v. Continental L. I. 6 N. Y. Surr. 1885, Matter of Rus- Co. G4 How. 93. sell, 3 Dem. 377. is 1866, Duffy d. Duncan, 35 N. Y. ' Ruk 30. 187. 8 Com. PI. Sp. T. 1887, Matter of Ives, Daily Reg. Sept. 14, 1887. EEFEEENCES TO ASCERTAIN DAMAGES. 113 itors.^ An order of reference to take proof of charges against an assignee for the benefit of creditors is not appeal- able to the court of appeals.^ CHAPTEK II. EEFEKENCE. TO ASCERTAIN DAMAGES CAUSED BY INJUNCTION. Section 1. — When ordered. Sbotion 3. — What damages may be allowed. Section 3. — Report of referee. § 1. When Ordered. — A reference may be ordered to as- certain the damages caused by an injunction, and the court may in its discretion direct that the sureties have notice of the hearing ; ^ but such reference cannot be ordered until it has been finally determined by judgment, or otherwise, that plaintiff was not entitled to the injunction.* Granting an order to discontinue because plaintiff failed to succeed, is not a final determination ; ^ nor is a discontinuance by con- sent ; ^ nor discontinuance by agreement with no reserva- tion of rights on the undertaking ; '' nor is discontinuance by leave of court without costs.^ That the injunction was dissolved on motion, and that another court has decided plaintiff had no title, is not.^ The order cannot be made by a state court where the action has been removed to and is 1 Com. PI. Sp. T. 1879, Matter of 6 Sup'm. Ct. Sp. T. 1881, Young v. Youngs, 5 Abb. N. C. 346. Campbell, 61 How. 40. 2 1880, Matter of Friedman, 83 N. ^-^q^^ p^ij^g^ «. Foley, 71 N. Y. Y. 609. 106 ; 1880, Johnson «. Elwood, 83 N. Y. 363. 3 Code Civ. Proo. § 623. i 1876, Lawton v. Green, 64 N. Y, 336 ; 1879, Benedict d. Benedict, 76 " Sup'm. Ct. Sp. T. 1881, Neugent N. Y. 600; 1878, Roberts i>. White, «• Swan, 61 How. 40. 73 N. Y. 375. ' 1880, Johnson v. Elwood, 83 N. 6 1880, Johnson ». Elwood, 83 N. Y. 863. Y. 363. 114: LAW OF EEFEKEES. still pending in the United States court, and has been dis- continued as to two of the defendants.^ Where an appeal from a judgment in favor of defendant has been perfected, the order will not be granted pending the appeal.^ The ap- plication will be refused where defendant has died, and the cause of action does not survive ; ^ but where the action is terminated, either by a judgment of the court, or by volun- tary discontinuance by plaintiff, it will be granted ; * or where an order refusing to continue a temporary injunction is followed by a discontinuance of the action.^ Where the injunction is dissolved on the bill alone it is a final deter- mination that plaintiff is not entitled thereto ; ^ but where it is dissolved on bill and answer the reference cannot be ordered until the cause is heardJ The application should be on notice, should be on all the pleadings and proceed- ings in the cause, and should be accompanied by an affi- davit showing the condition of the action.^ It may be op- posed by showing the final decree has not been entered ; that the application for any cause is premature ; or any matter that effectually bars the proceeding.^ The refer- ence to ascertain damages is almost a matter of course.^" The order should be to ascertain and report the damages caused by the injunction, and in the discretion of the court, IN. Y. Super. 1871, Benedicts. " gup'm. Ct. 1847, Dunkin v. Dixon, 47 Super. 477. Lawrence, 1 Barb. 447. ^Sup'm. Ct. 1880, Howards. Park^ ' Sup'm. Ct. 1847, Dunkin v. 59 How. 344 ; 1879, Musgrave v. Lawrence, 1 Barb. 447 Sherwood, 76 N. Y. 194. 8 1878, Roberts v. White, 73 N. 3 1880, Johnson e. Elwood, 82 N. Y. 375 ; Sup'm. Ct. 1877, Waterbury Y. 363. 1). Bowker, 10 Hun, 362. 4 Sup'm. Ct. Sp. T. 1860, Taaks » 1878, Roberts ii. White, 73 N. !). Schmidt, 19 How. 413; N. Y. Su- Y. 375; Sup'm. Ct. 1875, Lawton v. per. 1853, Coates v. Coates, 8 Super. Green, 5 Hun, 157; 1880, Jonnson v. 664. Elwood, 82 N. Y. 362 ; 1877, Palm- ' Sup'm. Ct. 1877, Waterbury i). er i). Foley, 71 N. Y. 106. Barker, 10 Hun, 262; N. Y. Super. i« Sup'm. Ct. 1877, Waterbury v. 1860, Carpenter v. Wright, 17 Super. Bowker, 10 Hun, 262 ; Sup'm. Ct. 655; Com. PI. Sp. T. 1869, Pacific 1875, Park v. Musgrave, 6 Hun, Co. V. Luling, 7 Abb. N. S. 37 ; 323 ; N. Y. Super. 1853, Coates ■«. Sup'm. Ct. 1875, Park v. Musgrave, Coates, 8 Super, 664 ; Sup'm. Ct. Hun, 333. 1847,Dunkin?).Lawrence,l Barb.474. EEFEEENCES TO ASCERTAIN DAMAGES. 115 direct that notice of the hearing be given to the sureties.^ Objections to the order must be made at the time, and an appeal taken therefrom. Proceeding with the reference, or consent thereto, is a waiver of any irregularity.^ The ref- erence can be had only against those who sign the bond ; ^ it may be ordered where plaintiff of his own motion vacates the injunction, and obtains an ex parte order of discontinu- ance.* § 2. What Damages Allowed. — The reference is not a pro- ceeding in the action,^ and is conducted in the same man- ner as in other special proceedings. The nominal may re- cover for the benefit of the real party in interest.^ The burden is on the defendant to show what, if any, damage was sustained by him." The value of property taken in an action to establish the title thereto may be allowed ; ^ so may rent, where summary proceedings are enjoined;^ but not unless such rents were lost by reason of such injunc- tion ;^'' and the value of crops defendant was prevented from harvesting.''^ Where the erection of a building was restrained, loss of rent, increased cost of labor and mate- rials, counsel fees on successful motion to dissolve, and on appeal from the order, may be allowed ; ^^ so may damages caused by putting the property in the hands of a receiver but not for mismanagement while in his hands ; ■'•^ so may fees and costs of re-advertising in foreclosure where the iCode Civ. Proo. § 633; 1878, Northern R. R. Co. 54 Barb. 371; Jordan v. Volkenning, 73 N. Y. 1873, Hovey ®. Rubber Tip Co. 50 300. N. y. 335. 2 1878, Roberts u. White, 73 N. » 1864, Barton «. Pisk, 30 N. Y. y. 375 ; 1876, Lawton b. Green, 64 166. N. Y. 326. 9 Sup'm. Ct. 1874, Bray v. Poillon, s Sup'm. Ct. 1870, Patterson v. 2 Hun, 383 ; 5 T. & C. 663. Bloomer, 9 Abb. N. S. 37. "N. Y. Super. 1874, McDonald v. ■» 1881, Pacific Mail Co. v. Tod, 85 James, 38 Super. 76 ; 47 How. 474. N. Y. 646. " Sup'm. Ct.l873, Allen «. Brown, ° 1876, Lawton «. Green, 64 N. Y. 5 Lans. 511. 326. 12 1878, Roberts i). White, 73 K Y. 6 1872, Andrews v. Glenville Co. 875. 50 N. Y. 383 ; Code Civ. Proc. § is Sup'm. Ct. 1876, Hotchkiss ». 634. Piatt, 8 Hun, 46; affd., 66 N. Y. ' Sup'm. Ct. 1869, Dwight «. 630. 116 LAW OP EEFEEEES. first sale was enjoined;^ and counsel fees on successful motion to dissolve ; ^ as well as services on the reference ; ^ and referee's fees, costs of motion to appoint referee, and of notice to surety ; * but counsel fees cannot be allowed for an unsuccessful effort to dissolve.^ Fees and expenses necessarily incurred in removing the temporary injunction, damage to business or otherwise necessarily resulting there- from are allowable ; ^ so are counsel fees incurred on the trial solely or principally in consequence of the injunction;'' and taxable costs of so much of the proceedings as was necessary to procure the dissolution,^ with costs of the ac- tion where it is discontinued in consequence of the dissolu- tion of the injunction ; ^ but general costs of the action are not usually recoverable.'''' And where an extra allowance has been granted to cover all allowance of costs to be made in any event, damages on injunction are included.^^ Neither party nor sureties are liable beyond the amount specified in the undertaking.''^ Fraud in procuring the signature of sureties to the undertaking is unavailable in these proceed- ings.'^ 1 Chancery 1844, Edwards «. Bo- 50 N. T. 335 ; 1882, Randall v. Car- dine, 11 Paige, 228. penter, 88 N. Y. 293. 2 1861, Corcoran v. Judson, 24 N. ' 1882, Newton v. Russell, 87 N. T. 106; Chancery, 1844, Edwards b. Y. 527; 1872, Andrews «. Glenville Bodine, 11 Paige, 223; Sup'm. Ct. Co. SON. Y. 282; 1861, Corcoran «. Park V. Musgrave, 6 Hun, 223 ; Judson, 24 N. Y. 106. 1874, Rose v. Post, 56 N. Y. 603 ; 8 chancery, 1846, Aldrieh v. Eey- N. Y. Super. 1853; Coates v. Coates, 8 nolds, 1 Barb. Ch. 613. Super. 664; 1882, Newton D.Russell, ^ n. y. Super. 1853, Coates v. 87 N.Y. 527. Coates, 8 Super. 664. 8 Sup'm. Ct. 1875, Park •«. Mus- i"Com.P1.1874,TroxellB.Haynes, grave, 6 Hun, 223 ; 1874, Rose -n. 5 Daly, 389 ; 16 Abb. N. S.; 1873, Post, 56 N. Y. 603; 1876, Lawton v. DisbrowD. Garcia, 52 N. Y. 654. Green, 64 N. Y. 326 ; Chancery, 1846, " 1873, Disbrow v. Garcia, 52 N. Aldrieh D.Reynolds,l Barb. Ch. 613. Y. 654. * Sup'm. Ct. 1872, Allen u. Brown, 12 1876, Lawton v. Green, 64 N. Y. 5 Lans. 511; 1872, Allen v. Glen- 326; N. Y. Super. 1870, Leavitt v. dale Co. 50 N. Y. 282. Dabney, 9 Abb. N. S. 373; 40 How. 6 1873, Hovey s. Rubber Tip Co. 280; Sup'm. Ct. 1840, Garcia v. SON. Y. 335; 1882, Randalls. Car- Sheldon, 3 Barb. 232; 1881, Pacific penter, 88 N. Y. 293 ; 1873, Disbrow Mail Co. v. Tod, 85 N. Y. 646. V. Garcia, 53 N. Y. 654. '^ Sup'm. Ct. 1874, Bray v. Poillon, 6 1872, Hovey v. Rubber Tip Co. 2 Hun, 383 ; 4 T. & C. 663. EEFEKENCES TO ASCERTAIN DAMAGES. 117 § 3. Report of Referee. — The general form of the report is the same as in other special proceedings.'' The testimony of the witnesses must be signed by them and returned by the referee with his report.^ It is not necessary, but it is sometimes advisable, to report findings of fact and conclu- sions of law.^ It is not essential to the validity of the re- port that the items of damage should be stated ; if plaintiff desires this he should apply for a further and more specific report.* When the referee reports damages in excess of the amount specified in the undertaking, the matter may be sent back for fui:ther evidence ; ^ or the court may reduce the amount to the proper sum.^ The report must be con- firmed.''' The order of confirmation will not be reversed for a mere technical irregularity, such as failure of witnesses to sign the testimony ; the remedy is by motion.^ The or- der of confirmation is conclusive as to the amount ; ^ but it can be recovered only by action.'^ ^AnWP. 112. 2 Rule 30. sSup'm. Ct. 1883, Matthews v. Murchison, 14 Abb. N. C. 513 n. * Sup'm. Ct. 1875, Lawtoii«. Green, 5 Hun, 157. 6 N. Y. Super. 1878, Roberts v. White, 43 Super. 455. 6 1876, Lawton v. Green, 64 N. Y. 326. ' Rule 30 ; Sup'm. Ct. Sp. T. 1850, Grifflngs v. Slate, 5 How. 305. 8N. Y. Super. 1878, Roberts «. White, 43 Super. 455; Sup'm. Ct. Sp. T. 1873, Nat. Bank «. Hibbard, 45 How. 380. 9 Code Civ. Proc. § 623. 10 Code Civ. Proc. § 625. 118 LAW OF EEFEKEES. CHAPTEE III. REFERENCES IN SUPPLEMENTARY PROCEEDINGS. Section 1. — Order, form, and contents. Section 3. — Proceedings before the referee. § 1. The Order, Form, and Contents. — A referee may be ap- pointed to take the examination on proceedings supple- mentary to execution ; ^ the appointment may be made at any stage of the proceedings, or any specific question may be referred. In the latter case the referee may be directed to report either the evidence or the facts.^ Either party may be examined as a witness in his own behalf, and may produce and examine other witnesses as on the trial of an action. The examination must be under oath, and may be adjourned from time to time as the referee deems proper.^ Unless the oath be expressly waived the referee must be sworn, and the oath filed with the report or testimony.* The examination is a special proceeding.^ The order can be reviewed only by the judge who made it or by the court.^ If the time and place of appearance are not fixed by the order the referee may issue his summons requiring such debtor to appear at a time and place named ; failure to ap- pear may be punished as a contempt.''' The order may di- rect the debtor to appear before a referee for examination, and before the judge on the Monday succeeding the close of the examination ; failure so to appear is a contempt.* Appearance before the referee and asking an adjournment, or submitting to examination without objection, is a waiver 1 Code Civ. Proc. § 3442. « Code Civ. Proo. § 3433. 2 Code Civ. Proe. § 2443. ' Com. PI. Sp. T. 1879, Redmond 3 Code Civ. Proc. § 3444. ■». Goldsmith, 2 Law. Bui. 19. 4 Code Civ, Proc. § 2445. » Sup'm. Ct. 1878, Sickles d. Han- 6 Code Civ. Proc. § 3433. ley, 4 Abb. N. C. 231. EEFEEENCES IN SUPPLEMENTAEY PROCEEDINGS. 119 of all save jurisdictional defects, in the proceedings.^ If the judgment debtor is a resident, or has a regular place of busi- ness in this state, he cannot be compelled under any order or adjournment to attend at a place without the county or his place of business.^ It will not be presumed that the court has lost jurisdiction by failure to adjourn from time to time.^ § 2. Proceedings on the Reference. — The referee must be sworn, and the examination must be under oath.* The ref- erence is interlocutory, and the proceedings are similar to those upon other interlocutory references. Where the ref- eree is ordered to take and report the evidence he must take all that is offered, he has no authority to pass upon objections thereto.^ He is to take, not to make, the exam- ination, and should not act as prosecutor.^ He may ad- journ the proceedings in the absence of either party, but to bring the judgment debtor into contempt notice of such adjournment must be personally served." Should the referee not be present at the time and place appointed, the judgment debtor is bound to wait a reasonable time, an hour, for him to appear.^ Upon failure of the debtor to appear the referee may file his report, and an order may be made thereon appointing a receiver of his property.^ The examination may be full and searching concerning the amount of the debtor's property, and any disposition he has made or attempted to make of it,^" how he acquired, and how he disposed of such property, are proper subjects of inquiry.^^ The proceeding is in the nature of a cross-exam- 1 Sup'm. Ct. 1862, Bingham u. « Com. PI. Sp. T. 1877, People «. Disbrow, 37 Barb. 34 ; 14 Abb. 251 ; Leipzig, 52 How. 410. N. Y. Super. 1856, Hobart b. Frost, ' Code Civ. Proc. § 2444 ; Sup'm. 13 Super. 673 ; 3 Abb. 119 ; Sup'm. Ct. 1860, Reynolds v. MoEliione, 30 Ct. 1857, Dresser v. Van Pelt, 15 How. 454. How. 19; N. Y. Super. 1880, Leh- » Sup'm. Ct. 1860, Reynolds v. mair v. Griswold, 46 Super. 11 ; N. McElhone, 20 How. 454. Y. City Ct. ' 1858, Edmonston v. Loud, 16 N. 2 Code Civ. Proc. § 2459. Y. 543. 3 Wright v. Nostrand, 94 N. Y. 34. '» Sup'm. Ct. 1868, Forbes ». Wil- 4 Code Civ. Proo. §§ 2444, 3445. lard, 54 Barb. 520; 37 How. 193. 6 1873, Fox V. Moyer, 54 N. Y. "Sup'm. Ct. 1868, Forbes?'. Wil- 135. lard, 54 Barb. 520 ; 37 How. 193. 120 LAW OF BEFEEEES. ination, and leading questions are proper ;* the party can- not refuse to answer upon the ground that it will tend to convict him of a fraud, or to show he has been a party or privy to a fraudulent conveyance.* While a party cannot be allowed to make evidence by stating matters not called for, he may state so much as is necessary to enable the court to understand the matter inquired of.' The party under examination is not entitled to cross-examination, but he may have the advice and instruction of counsel in fram- ing his answers.* Where it appears that the debtor has sold property at its full value, an inquiry as to whom, is im- material ; otherwise when it is sold for less than its value.^ A party may be allowed to explain his evidence after it is signed ; but such explanations should be in the form of a supplementary statement former being left untouched.^ A witness cannot be compelled to subscribe to testimony erro- neously taken, though supplemental corrections appear in the minutes.''' A party is not bound to answer questions which do not tend to show whether he is in possession of property which can be applied to the debt.* Where dur- ing the examination it appears that the debtor has trans- ferred property to a witness, such witness may be com- pelled to give full information touching such transfer and the consideration therefor.^ A witness cannot stop the examination by claiming to own the property ; the creditor may show the purchase was not made in good faith.^" A third person indebted may be' examined in aid of execution though the debt is not yet due.^' The subpoena to a wit- iSup'm.Ct.Chamb. 1850, Corning ' Sup'm. Ct. 1878, Sherwood v. V. Tooker, 5 How. 16 ; N. Y. Super. Dolen, 14 Hun, 191. Sp. T. 1851, Leroy v. Halsey, 8 Su- » Com. PI. Sp. T. 1858, Hurst v. per. 589. Enoch, 6 Abb. 212; Sup'm. Ct. 2 Code Civ. Proc. § 2460. 1851, Van Wyck t>. Bradley, 3 Code 3 N. Y. Super. Sp. T. 1851, Le- R. 157. roy v. Halsey, 8 Super. 589. » 1869, Lathrop ®. Clapp, 40 N. * Sup'm. Ct. Chamb. 1850, Corn- Y. 328. ing V. Tooker, 5 How. 16. i" Sup'm. Ct. 1882, Mechanics' 6 Com. PI. 1859, Williams v. Car- &c.. Bank «. Healy, 14 Week. Dig. roll, 2 Hilt. 438. 120. 6 Sup'm. Ct. Chamb. 1850, Com- " Sup'm. Ct. 1883, Davis ii. Jones, ^ng V. Tooker, 5 How. 16. 8 Civ. Proc. 43. EEFEBENCES IN SUPPLEMENTARY PROCEEDINGS. 121 ness to attend should be under the hand of the referee, not of the court^. He may make an order directing the judg- ment debtor to produce his books and papers.- It is in the option of the judgment creditor whether he will exam- ine the debtor, or witnesses, or both.^ A person not a party cannot appear by counsel.* The referee may ad- journ the proceedings from time to time, even though the debtor refuses to consent thereto ; ^ but the creditor must proceed with reasonable diligence ; he cannot adjourn in- definitely.^ Application for an adjournment or a stay should be made to the referee, not the court.''' After the examination is once closed the referee has no power to re- open it.^ The testimony of the witnesses must be signed by them and returned by the referee to the court with his re- port.^ The court does not lose jurisdiction by failure to adjourn regularly.'"' The order of reference could, per- haps, be set aside, but only on motion of the judgment debtor.^^ 1 Sup'm. Ct. 1885, People «. Ball, 37 Hun, 245. 2 Com. PI. Sp. T. 1885, Pruden v. Tallman, 6 Civ. Proo. 360. 8 County Court, 1855, Graves v. Lake, 12 How. 33. * Sup'm. Ct. Sp. T. 1856, Sanford V. Carr, 2 Abb. 462. 6 Sup'm. Ct. 1877, Kaufman i>. Thrasher, 10 Hun, 438. s Chancery, 1844, Hudson v. Plets, 11 Paige, 180. ' Sup'm. Ct. 1862, Mason v. Lee. 33 How. 466. 8 Chancery, 1844, Hudson v. Pletz, 11 Paige, 180: Sup'm. Ct. Sp. T. 1856, Orr's case, 3 Abb. 457. 9 Rule 30. w 1883, Wright v. Nostrand, 94 N. Y. 41. 11 Sup'm. Ct. 1877, Underwood v. Sutclifte, 10 Hun, 453. 122 LAW OF EEFEBEES. CHAPTEE IV. EEFEEENCES UNDER THE GENEEAL ASSIGNMENT ACT OF 1877. Section I. — Reference under Section 31. Section 2. — Reference of a disputed claim. Section 3. — Reference to take and state the account. Section 4. — Report of referee on the account. § 1. Reference under Section 21. — The county court may, at any time, on the petition of any party interested, order the examination of witnesses and the production of any books and papers before him, or before a referee appointed by him for such purpose, and the eyidence so taken, to- gether with the books and papers, or the extracts there- from, shall be filed in the county clerk's office. No party or witness shall be excused from answering on the ground that the answer may tend to criminate him ; but such an- swer cannot be used against him in any criminal action or proceeding.'' Such examination is discretionary.^ The judge must determine whether the application is made in good faith, and can allow it only in aid of, and not in hos- tility to the assignment ; ^ but the fact that the examination may develop evidence showing the assignment to be fraudu- lent is no reason for refusing the order.* The order should provide that the examination of the books shall be under the control of the referee, and that the assignee or his rep- 1 L. 1877, Ch. 466, § 31. Matter of Brown, 10 Daly, 115; 2 1885, Matter of Holbrook, 99 N. Com. Pleas. 1882, Matter of Sto- Y. 539 ; Sup'm. Ct. 1885, Matter of zey, 64 How. 353 ; Com. PL Sp, T. Kapelovioh, 33 Week. Dig. 13. 1881, Matter of Everit, 10 Daly, 99 ; 3Com. PI. Sp. T. 1879, Matter of 1885, Matter of Holbrook, 99 N. Y. Burtnett, 8 Daly, 363; Com. PI. 539. 1883, Matter of Goldsmith, 15 Week. ^ Sup'm. Ct. 1885, Matter of AVil- Dig. 110 ; Com. PI. Sp. T. 1883, kinson, 36 Hun, 134. EEFEEENCES UNDEE GENEEAL ASSIGNMENT ACT. 123 resentative may be present ; ^ but such examination should not extend to an inquirywhether tlie preferences are fraud- ulent, what the assignors, prior to the assignment, did with borrowed money, or whether any act of theirs was fraudu- lent in fact or in law.^ The referee is to take, not make the examination ; if he exceeds his powers in this respect his report will be sent back for correction, and so much of the examination as was made by the referee will be stricken out.^ The examination cannot be had under this section to enable the assignee to prepare his schedules. For that pur- pose it must be had under Section 3 before the county judge.* The proceedings under Section 21 are in the nature of a cross- examination ; the debtor must discover his whole estate and effects as they were at the date of the assignment, and a witness if any is called, must answer every question put to him about the debtor's property, whatever the result may be to either.^ The object is the perpetuation of testi- mony, and the inspection of books and papers for use in any of the various proceedings that grow out of the admin- istration of the assigned estate.® Only the witnesses named in the order, and the books therein required to be produced, can be examined.'' The evidence taken is not to be reported to the court, but is to be certified by the referee and filed in the office of the county clerk, in New York city in the office of the clerk of the common pleas.^ There is no provision in the statute or elsewhere for any opinion or report of the referee ; if any report is made or , opinion rendered the report wiU be sent back, and the re- 1 Com. PI. Sp. T. 1885, Matter of ed. Com. PI. Sp. T. 1887, Matter of Rindskopf , 13 Daly, 26. Ives, Daily Reg. Sept. 14, 1887. 2 Com. PL Sp. T. 1885, Matter of ^ iggs, Matter of Holbrook, 99 N. Rindskopf, 13 Daly, 36; N. Y. City Y. 539. Ct. 1885, Schneider «. Altman, 8 ^ Com. PI. Sp. T. 1879, Matter of Civ. Proc. 243. Boyce, 10 Daly, 18 ; Com. PI. Sp. 8 Com. PI. Sp. T. 1877, People v. T. 1887, Matter of Ives, Daily Reg. Leipzig, 53 How. 410 ; Com. PI. Sp. Sept. 14, 1887. T. 1887, Matter of Ives, Daily Reg. ' 1885, Matter of Holbrook, 99 N. Sept. 14, 1887. Y. 539. 4 L. 1877, Ch. 466, § 3 ; as amend- ^ Com. PI. Sp. T. 1887, Matter of Ives, Daily Reg. Sept. 14, 1887. 124 LAW OF EEFEEEES. port and opinion ordered stricken out.^ The order of pro- cedure before tlie referee, and the manner of compelling obedience to his directions has already been discussed.^ The form of the report is the same as in other cases to take and report evidence.^ § 2. Reference of Disputed Claim. — A disputed claim aris- ing under the provisions of the assignment act may be re- ferred.^ The order may be to hear and determine.^ As to a claim so referred that is not in the schedules and con- tested by the assignee, the burden of proof is on the claim- ant.^ The referee in the accounting of the assignee may try a disputed claim if the order therefor was made without objection.''' The county court has all the powers of a court of equity as to references for its own information of ques- tions arising under the act.^ The hearing is brought on in the same manner, and the proceedings before the referee are the same as in other special proceedings.^ Where the order was that the referee hear and determine a disputed claim his decision will not be reviewed at special term, but the parties Avill be left to their appeal.^" § 3. Reference to Take and State the Account. — A referee may be appointed to take and state the account of an as- signee for the benefit of creditors ; " the appointment is matter of course in N. T. Com. Pleas. ^^ It was formerly held that such reference could not be ordered without a general citation to all the creditors,^^ but under the act of 1878 (L.1878, ch. 318), the contrary is held.i*. The appHca- 1 Com. PI. Sp. T. 1887, Matter of » Com. PI. Sp. T. 1878, Matter of Ives, Daily Reg. Sept. 14, 1887. Bonner, 8 Daly, 75. ^Ante, P. 111. » ^nte, PP. 110, 111. 3Ante,P. 106. " Com.Pl. Sp. T. 1881, Matter of * L. 1877, ch. 466. § 36 as am. by Fairchild; 10 Daly, 74. L. 1878, ch. 318, § 7. " L. 1877, ch. 466, § 20, Assign- 5 Com. PI. Sp. T. 1881, Matter of ment Rule 23, N. Y. Com. Pleas. Fairchild, 10 Daly, 74. i^ Rule 28, Com. Pleas, supra. Com. PL Sp. T. 1883, Matter ot ^ Com.Pl. 1878, Matter ol Cotlow, Jeselson, 10 Daly, 104. 5 Abb. N. C. 301 n. ; 1876, Bailey v. ' Com. PI, Sp. T. 1883, Matter of Byrne, 67 N. Y. 346. Jeselson, 10 Daly, 104. " Sup'm. Ct.l881, Matter of Cow- ing, 36 Hun, 314. EEFEEENCES UNDEE GENEEAL ASSIGNMENT ACT OP 1877. 125 tion for a general accounting may be made by petition of the assignee, any creditor, or surety of the assignee, or of the assignor for a general citation after one year from the date of the assignment.'^ Where the application is by a single creditor it should be for an order to show cause.^ The supreme court has concurrent jurisdiction with the county courts in aU matters arising under the act.^ The order should be to take and state the account.* The ref- eree must be sworn." He has authority to examine the par- ties and witnesses on oath in relation to the assignment and accounting, and all matters connected therewith, to compel their attendance for that purpose, their answers to questions, and the production of books and papers.^ The method of compelling such attendance, testimony, and the production of such books has already been treated herein.'^ The assignee must in all cases file his account with vouch- ers.® Except when otherwise expressly provided the pro- cedure in the accounting will be the same as an accounting in an action.® By special rule in New York city the ac- count must be in the nature of a debit and credit statement, the debit side being the assets as shown in the schedule, and the credit the decrease therein, as well as expenses.*" The statement of expenditures must be full and complete, and must be accompanied with vouchers, save for trivial expenses.** What are trivial expenses has not been, and perhaps cannot be determined, and must be left somewhat to the discretion of the referee or to the court. The old chancery rule required vouchers for all payments exceeding twenty dollars where the sum of all such items did not ex- ceed five hundred dollars.*^ The requirements of assign- 1 L. 1877, ch. 466, § 11, as amend- « l. i877, ch. 466, § 20, as amend- ed by L. 1878, ch. 318. ed by L. 1878, ch. 318. 2 Sup'm. Ct. 1881, Matter of Cow- ' AnU, P. 111. ing, 26 Hun, 214. * Assignment Rule 23, Com. PI. 3 L. 1885, p. 626, ch. 380. » Ante, P. 94. 4 Com. PI. Sp. T. 1878, Matter of i" Assignment Rule 25, Com. PI. Vilmar, 10 Daly, 15; L. 1877, ch. " Assignment Rule 26, Com. PI.; 466, § 20, par. 3. Rule 30. 5 Com. PI. Sp. T. 1878, Matter of >3 Chancery Rule 107, ante, p. 89. Vilmar, 10 Daly, 15. 126 LAW OF EEFEEEES. ment rule 26 are more stringent than those of chancery rule 107. The affirmative on the accounting is with the as- signee, and objections to the account may be presented to the referee in writing, or be brought out in cross-examina- tion.^ The testimony must be signed by the witnesses and attached to and filed with the report.^ The assignee must prove that he has duly advertised for claims, under section 4, that notice to present claims was duly made and served, that citations have been issued to, and duly served upon creditors and parties interested in the fund, and who the creditors are.^ The referee has no power to cure failure of notice to present claims.* When the order of reference authorizes him to fix the time when claims shall be presented, he may extend the time so fixed.^ The assignee must show the necessity for, and the reasonable- ness of the charges for expenses.^ The referee has no power to consider a claim against the assignee for conver- sion.''' "Where directed by the order the referee may try a disputed claim .^ § 4. Report of Referee on the Account. — The act nowhere prescribes the form of the referee's report on the account- ing of the assignee. In the absence of directions to the contrary, the general form on a reference to take and state an account may be adopted ; ^ modified, of course, to meet the requirements of the assignment act. In New York city the rule of the court of common pleas requires that the re- port shall show all the jurisdictional facts necessary to confer power on the court, such as the proper executing and acknowledging the assignment, recording the same, 1 Assignment Rule 27, Cona. PI. 5 Com. PI. 1884, Matter of Wood- 2 Assignment Rule 38, Com. PL; ward, 67 How. 359. Rule 30. s Com. PI. Sp. T. 1879, Matter of 3 Com. PI. Sp. T. 1880, Matter of Manahan, 10 Daly, 39 ; Com. PI. Sp. Phillips, 10 Daly 47 ; Com. PI. 1878, T. 1880, Matter of Johnson, 10 Daly, Matter of Dryer, 10 Daly, 8; Com. 133. PI. Sp. T. 1880, Matter of Sohaller, ' Com. PI. 1885, Matter of Mack- 10 Daly, 57. lin, 13 Daly, 105. 4 Com. PI. Sp. T. 1880, Matter of 9 Com. PI. Sp. T. 1881, Matter of Sohaller, 10 Daly, 57. Pairchild, 10 Daly, 24. »Rule 85 ; AnU, pp. 94, 99. EEFEEENCES UNDEE GENEEAL ASSESSMENT ACT OF 1877. 127 filing of the schedules and bond, the advertising for credi- tors, the issuing of the citation, the presenting of the ac- count ; and where any items are disallowed, such items are to be fully set out.^ The report of the referee to take and state the account must show whether the assignee duly advertised for claims under section 4, whether notice to present claims was duly made and served, whether citations have been issued to and served upon creditors and parties interested in the fund, who the creditors are, and who ap- peared on the return thereof.^ If composition is made, the report must show whether all have signed ; the original deed and release must be returned, as well as the evidence subscribed by the witnesses.^ The report must be filed and notice thereof given to creditors.* Unless exceptions thereto are filed, the report will be confirmed of course.^ It may be confirmed on consent of the creditors.® One who has moved at special term to confirm the report must be held to support it both in law and fact, although he has filed exceptions thereto.''' The referee cannot be compelled to file his report until his fees are paid.^ An assignee who has the funds of the estate in his hands must pay the fees of the referee on the final accounting of a retiring assignee ; ^ if the fees are objected to they must be taxed,^" at the stat- utory rate.^^ The fees are not limited to the time and labor actually spent in sittings and taking evidence ; ^^ but may charge for time necessarily spent in examining the 1 Assignment Rule 29 Com. PI. ' Com. PI. 1883, Matter of Potter, 2 Com. PI. Sp. T. 1880, Matter of 10 Daly, 133. Phillips, 10 Daly, 47 ; Com. PI. 1878, » Com. PI. Sp. T. 1880, Matter of Matter of Dryer, 10 Daly, 8 ; Com. Elmore, 10 Daly, 48. PI. Sp. T. 1880, Matter of Schaller, » Com. PI. Sp. T. 1880, Matter of 10 Daly, 57. Elmore, 10 Daly, 48. 3 Com. PI. 1878, Matter of Dryer, i" Com. PI. Sp. T. 1883, Matter of 10 Daly, 8. Johnson, 10 Dalj', 123 ; Com. PI. * Com. PI. Sp. T. 1878, Matter of Sp. T. 1880, Matter of Schaller, 10 Scheu, 10 Daly, 11. Daly, 57. 6 Rule 30 ; Com. PI. Sp. T. 1878, " Com. PI. Sp. T. 1880, Matter of Matter of Scheu, 10 Daly, 11. Schaller, 10 Daly, 57 ; Com. PI. 6 Com. PI. Sp. T. 1878, Matter of 1881, Matter of Fairchild,10 Daly, 74. Weinhaus, 5 Abb. N. C. 355. »2 Com. PL Sp. T. 1881, Matter of Hulbert, 9 Abb. N. C. 132. 128 LAW OF EEFEKEES. account.^ The taxing officer must ascertain by affidavit and other evidence how much time and labor were actually devoted to the case.^ Where no objections are made to the account, the duty of the referee is limited to ascertain- ing the jurisdictional facts, and ascertaining whether notice has been given to creditors. He can receive no fees for going beyond this, though some of the charges are suspi- cious.^ Where the assignee carries on the business of the assignor at a loss he must be charged with the value of the assets that came to his hands, and allowed the ordinary expenses of administering his trust.* Exceptions to the report must be in writing, and must be specific.^ iCom. PI. Sp. T. 1880, Matter ot ^Com. PI. 1885, Matter of Mack- Sohaller, 10 Daly, 57. lin, 13 Daly, 105. 2 Com. PL Sp. T. 1880, Matter of 5 Qom. PL Sp. T. 1876, Levy's Sohaller, 10 Daly, 57. Accounting, 1 Abb. N. C. 177. 3 Com. PL Sp. T. 1885, Matter o£ May, 13 Daly, 24. EEFEEENCES OF A DISPUTED CLAIM. 129 CHAPTER V. BEPEEENCE OP A DISPUTED CLAIM AGAINST THE ESTATE OF A DECEASED PEESON. Section 1. — The order, and proceedings thereon. Section 2.— Report of referee. § 1. Order of Reference and Proceedings thereon. — A claim against the estate of a deceased person that has been re- jected by the executor or administrator may, by written consent of the parties, be referred to one or three disinter- ested persons approved by the surrogate. The agreement and approval of the surrogate must be filed in the office of the clerk of the supreme court in the county where the par- ties, or one of them, resides, and an order made referring the matter in controversy to the person or persons so selected.' The statute applies only to claims that existed against the deceased ; it has no application to the claims of an execu- tor for expenses incurred by him in the execution of his trust,^ nor to the claim of an executor against the de- ceased.^ Equitable as well as legal claims may be referred ; * or a claim for a tort ; ^ or unliquidated claims of a surviving partner against his deceased partner ; ^ or of an endorser of promissory notes made by a firm, of which deceased was a member.'' The reference must be made, or an action on the claim begun, within six months after dispute or rejec- 1 3 R. S. P. 88, § 36. * Sup'm. Ct. 1864, White v. Story, 2 N. Y. Surr. 1883, Stewart v. O'- 38 How. 173. Donnell, 3 Dem. 17. ^ Sup'm. Ct. 1865, Brockett«.Bush, 8 3 R. S. 88, § 33 ; Code Civ. Proc. 18 Abb. 337. §3739; 1876, Kyle v. Kyle, 67 N. " gup-m. Ct. 1857, Francisco «. Y. 400 ; 1884, Snyder v. Snyder, 96 Fitch, 25 Barb. 130. jf. y. 88. ' 1886, Matter of Gray,43 Hun,4H. 130 LAW OP EEFEREES. tion, or if not yet due within six months after it becomes due, otherwise it will be barred.^ A notice of rejection didy signed by the attorneys of the personal representatives is sufficient ; ^ in the absence of notice within a reasonable time it will be presumed the claim is allowed.^ The stat- ute is penal in character, and must be strictly complied with. There must be an agreement in writing to refer, it must be filed, and an order entered; otherwise the court acquires no jurisdiction ; * it must name the referees, or authorize the court to do so, otherwise the court has no authority to make the appointment.^ A written consent endorsed on an order entitled in the surrogate's court, signed by the surrogate and entered by the clerk of the supreme court, has been held sufficient where the parties have pro- ceeded before the referees therein named without objec- tion.® The agreement must state substantially the issue between the parties, alleging the claim on one side and the denial of its justice on the other ; it is a substitute for the complaint and answer.'' The order should be entitled in the supreme court, but it will be held valid though entitled in the surrogate's court if the parties have proceeded there- under without objection; in such case the order and con- sent may be entitled and filed now for then.^ The refer- ence should be to hear and determine, and the proceedings are the same in all respects as upon a reference ordered by the court in an action.^ The reference is not an action, but a special proceeding ; ^° the referee may be directed to 1 Code Civ. Proo. § 1833. « Sup'm. Ct. 3868, Bucklin «. 2 1875, Selover v. Coe, 63 N.T. 438. Chapin, 53 Barb. 488 ; 35 How. 155. s N. Y. Surr. 1881, Underbill v. ' Sup'm. Ct. 1835, Woodin v. Bag- Newburger, 4 Redf. 499 ; compare ley, 13 Wend. 453. Hoyt 1). Bonnett, 50 N. Y. 538. « Sup'm. Ct. 1868, Bucklin v. * Sup'm. Ct. 1883, Bennett v. Chapin, 53 Barb. 488 ; 35 How. 155. Gould, 37 Hun, 366; Sup'm. Ct. » 3 R. S. 89, §37; 1882, Mowryu. 1868, Bucklin i>. Chapin, 35 How. Feet, 88 N. Y. 453. 155; Sup'm. Ct. Sp. T. 1851, Com. "1880, Roe v. Boyle, 81 N. Y. stocks. Olmstead, 6 How. 77; Sup'm. 305; Sup'm. Ct. 1880, Young v. Cud- Ct. 1833, Robert 1). Ditmas, 7 "Wend, dy, 33 Hun. 349; 1883, Mowry v. 533. Peet, 88 N. Y. 453 ; Sup'm. Ct. 1886, " N. Y. Surr. 1883, Tilney v. Clen- Hatch «. Stewart, 42 Hun, 164. dinning, 1 Dem. 212, BEFEBENCE OF A DISPUTED CLAIM. 131 inquire into the claim of the estate against the claimant,^ and may set off so much thereof as will defeat the claimant, but cannot give judgment as for a counter-claim for the ex- 4 not object that the claim is not referable.^ Claimants having separate interests cannot unite in one reference The referee possesses no equity powers,^ but he has jurisdic- tion to determine whether a creditor is entitled to share with the individual creditor of a deceased member of a firm, or whether he must await payment in full of partner- ship debts.^ The submission by consent of a non-referable claim against the estate of a decedent, is an arbitration, not a referenced § 2. Report of Referee. — The provision of section 1019 of the code requiring a referee's report to be made within sixty days has no application to these proceedings,^ nor has that part of rule 30 that requires the testimony of wit- nesses to be signed by them and filed with the report.^ The report must contain findings of fact and conclusions of law separately stated,'" and may award costs" and disburse- ments.''^ The certificate of the referee that the administra- tor refused to refer is prima facie conclusive on the ques- tion of costs.'^ Judgment can be entered on the report only 1 Sup'm. Ct. 1879, Hendrickson Ct. Sp. T. 1858, Akely «. Akely, 17 v. Dickson, 19 Hun, 290 ; 1882, Mow- How. 31. ry ». Peet, 88 N. Y. 453. * Sup'm. Ct. Sp. T. 1864, Godding 2 1883, Mowry ». Peet, 88 N. Y. ». Porter, 17 Abb. 374. 453; Sup'm. Ct. 1879, Hendrickson 9 Sup'm. Ct. 1876, Kellogg «. Wer- «. Dickson, 19 Hun, 390 ; Sup'm. ner, 6 Hun, 453. Ct. 1887; Myers v. Cronk, 45 Hun, w 2 R. S. p. 89, § 37. 401. " Sup'm. Ct. Sp. T. 1884, Heam 3 Sup'm. Ct. 1875, Weller «. "Wei- ■». Sullivan, 13 Abb. N. C. 371 ; ler, 4 Hun, 195. Sup'm. Ct. 1886, Krill v. Brownell. 4 Sup'm. Ct. 1887, Myers «. Cronk, 40 Hun, 72. 45 Hun, 401. '^ Sup'm. Ct. 1886, Krill ». Brown- 5 Sup'm. Ct. 1887, Myers®. Cronk, ell, 40 Hun, 72; 1886, Larking. 45 Hun, 401. Maxson, 103 N. Y. 680 ; Sup'm. 6 Sup'm. Ct. 1886, Matter of Gray, Ct. 1886, Hatch «. Stewart, 43 Hun, 43 Hun, 411. 164, ' Sup'm. Ct. Sp. T. 1864, God- i^ Sup'm. Ct. 1886, Ely v, Taylor, ding V. Porter, 17 Abb. 874 ; Sup'm. 43 Hun, 205. 132 LAW OF EEFEEEES. on confirmation by the court.^ A judgment entered witli- out such confirmation is void.^ The jurisdiction of the referee may be questioned on the motion to confirm.* To secure a review of the report on appeal, confirmation must be opposed or a motion to set it aside made at special term.* A report, regular on its face, is sufficient to require its formal confirmation.^ It may be set aside on motion made at special term.^ As a foundation for such motion a case must be made and settled,'' but the making of a case is unnecessary where the moving papers show the matter was not referable under the statute.* The motion may be made after judgment,^ on the motion to confirm, judgment contrary thereto cannot be ordered.^" The report may be reviewed by appeal from the judgment," without moving at special term to set aside the report,^^ but the proper practice is to appeal frOm the order confirming the report.^^ "When the report is confirmed by consent, no appeal from the judgment entered thereon can be taken.''* On reversal of the judgment the court may discharge the referee, and order a reference to a referee of its own selection.^^ After the report is confirmed it is binding on the surrogate's court, and can be reviewed only by appeal.'^ 1 Sup'm. Ct. 1857, Boyd v. Bige- « Sup'm. Ct. 1882, Schreyer v.^ low, 14 How. 511 ; Sup'm Ct. Sp. T. Holborrow, 63 How. 228. 1853, Avery v. Smith: 9 How. 349. i" Sup'm. Ct. 1880, Young u. Cud- 2 Sup'm. Ct.l882,Burnett 0. Jones, dy, 33 Hun, 249; Sup'm. Ct. 1861, 27 Hun, 366 ; Sup'm. Ct. Sp. T. 1851, Cos i). Coe, 37 Barb. 232 ; 4 Abb. 86. Comstook D. Olmstead, 6 How. 77 ; "Sup'm. .1861, Coe v. Coe, 37 Sup'm. Ct. 1861, Coe v. Coe, 37 Barb. 232 ; 1880, Roe «. Boyle, 81 Barb. 332. N. Y. 305 ; Sup'm. Ct. 1880, Young 8 Sup'm. Ct. Sp. T. Godding ». v. Cuddy, 23 Hun, 349. Porter, 17 Abb. 374. 12 Sup'm. Ct. 1881, Kellogg v. ^ 1875, Smith ». Velie, 60 N.Y. 106. Clark, 23 Hun, 393. B Sup'm. Ct. 1877, Somerville v. is Sup'm. Ct. 1886, Hatch v. Stew- Work, 9 Hun, 664. art, 43 Hun, 164. «2 R. S. 89, § 37; Sup'm. Ct. " Sup'm. Ct. 1879, Frame » Van- 1882, Sohreyer v. Holborrow, 26 tine, 16 Hun, 528; 1875, Smith v. Hun, 468. Velie, 60 N. Y. 106 ; Sup'm. Ct. 'Sup'm. Ct. 1877, Somerville v. 1881, Kellogg b. Clark, &3 Hun, 393. Work, 9 Hun, 664; Sup'm Ct. 1880, 1= Sup'm. Ct. 1879, Mastin ». Bud- Young V. Cuddy, 23 Hun, 349. dington, 18 Hun, 105. "Sup'm. Ct. Sp. T. 1864, God- i« Sup'm. Ct. 1886, Matterof Gray, ding V. Porter, 17 Abb. 374. 42 Hun, 411. KEFEKENOES IN THE SUEBOGATE's COURT. 133 CHAPTEE VI. EEFEKENCES IN THE SUEEOGATE's OOUET. Section 1. — When ordered. Sbotion 2. — Proeoedings on the reference. Section 3. — Eeport of referee. § 1. • Wlien Ordered. — Since the adoption of tlie code of civil procedure the power of a surrogate to order a refer- ence is similar to, and almost co-extensive with that pos- sessed by other courts of record.'' The referee must possess the same qualifications as those appointed in other courts ; ^ a clerk or other person employed in any capacity in a sur- rogate's office shall not act as appraiser, as attorney, or counsel, or as referee, or special guardian in any matter before the surrogate.^ But the stenographer of the court is not within the provisions of this section, or of section 90 of the code of civil procedure.* The court may order a refer- ence for its own information ; ^ the proceedings thereon are similar to those ordered for the same purpose in other courts.® Where any material and necessary witness in a special proceeding before the surrogate, except a subscrib- ing witness to a will, is so aged, sick, or infirm as to be imable to attend before the surrogate to be examined, and in any other case, the surrogate may, in his discretion, ap- point a referee to proceed to the place where the witness is, whether in his own or an adjoining county, and take the examination of such witness as in open court. Such notice of the time and place of examination as the surro- 1 Code Civ. Proo. § 2546. « 1881, Kearney «. MeKeon, 85 N. a Ante, pp. 6, 7. Y. 136 ; N. Y. Surr. 1877, Taylor «. 3 Code Civ. Proo. § 3511. Bentley, 3 Redf. 34. * N. Y. Surr. 1885, Benedict v. « Ante, pp. 83, 86. Cooper, 8 Dem.363; 3 How. N. S. 38. 134 LAW OF REFEBEES. one who has failed to appear as required by the citation.* A referee may be appointed to take the examination of a person alleged to have withheld property of a decedent from an executor or administrator which he ought to de- liver to him.^ The referee on such proceeding possesses the same power as the surrogate to punish a refusal to be sworn, or to answer a proper question.^ That a referee appointed by the surrogate is called an auditor does not vitiate the order.* The appointment is made in the same manner as in other courts.^ The general rules of practice apply.^ A referee appointed in a special proceeding in the surrogate's court, other than one instituted for the probate or revocation of probate of a will, has the same power, and is entitled to the same compensation as a ref- eree of the issues in an action in the supreme court ; '' as to the powers of a referee of the issues, see ante, P. 32, et seq.; , compensation, ante, P. 62. The report of the referee is not conclusive, but is subject to confirmation by the surrogate.^ On the written consent of all the parties appearing in a probate case, the surrogate may appoint a referee, or may, in his discretion, direct an assistant to take and report the testimony ; but without authority to pass upon the issues involved therein.^ In a special proceeding, other than for the probate or the revocation of probate of a will, the sur- rogate may appoint a referee to take and report the evi- dence upon the facts, or upon a specific question of fact ; *" and in a probate case, upon written consent of all the par- ties appearing, may appoint a referee, or in his discretion may direct an assistant to take and report the testimony, but without authority to pass on the issues involved.** So where proceedings to set aside a will are invalid because no guardian ad litem was appointed for an infant, a refer- gate shall direct must be given to each other party, except 1 Code Civ. Proe. §§ 2539, 3540. « N. Y. Surr. 1882, Chatfield c. 2 Code Civ. Proo. §§ 2706, 3707. Hewlett, 3 Dem. 191. 3 Code Civ. Proo. § 3710. ' Code Civ. Proo. § 2546. < 1877, Buohan ». Rintoul, 70 N. 8 Code Civ. Proo. § 2546. y. 1. " Code Civ. Proo. § 3546. 6 Ante, pp. 9, 10. w Code Civ. Proe. § 2546. " Code Civ. Proo. § 2546. EEFERENCES IN THE SUBEOGATE'S COUET. 135 ence may be ordered to ascertain whether it would be for the benefit of the infant to have the will set aside.' On a motion for a substitution, a reference may be ordered to ascertain what would be a reasonable compensation to the retiring attorney.^ An account rendered may be sent to a referee to hear and determine all questions arising on the settlement thereof.^ Any party may contest the ac- count as to a matter affecting his interest in the settlement and distribution of the estate.* To enable the party to make such contest, objections should be filed ; they maybe stated in general language ; ^ but must be sufficiently definite to point out the precise question intended to be raised.^ In New York City the objections must be specific ; a copy must be served on the accounting party or his attorney, if he has appeared by attorney, within eight days after filing the ac- count, and if it satisfactorily appears to the referee, by afii- davit or petition, that an examination of the accounting party is necessary, it will be ordered.'' Before the adop- tion of Section 2533, Code of Civ. Proc, and Eule VII. N. T. Surr. Ct., it was held in many well considered cases that the filing of any notice that generally or specifically denies the correctness of the account, raises an issue. ^ "Whether the objections filed are sufficiently specific must be deter- mined by the circumstances of each case.^ An examination of an executor may be had before a referee, whether objec- 1 N. Y. Surr. 1885, Benedict v. Y. Surr. 1886, Frame i3. Willets, 4 Cooper, 3 Dem. 363 ; 3 How. N. S. Dem. 368S ; up'm. Ct. 1874, Bain- §8. bridge u. McCullogh, 1 Hun, 488. 3N. Y. Surr. 1883, Chatfield v. 'Rule VII. N. Y. Surrogate's Hewlett, 3 Dem. 191. Court. 8 Code Civ. Proc. § 2546; 1877, i- N. Y. Surr. 1879, Matter of Buchan v. pintoul, 70 N. Y. 1. Hall, 7 Abb. N. C. 149 ; Steuben Co. * Code Civ. Proc. §§ 3730, 3810 ; Surr. 1873, Larrour ®. Larrour, 3 1877, Buchan ii. Rintoul, 70 N. Y. Redf. 69 ; 1874, Peck «. Sherwood, 1. 56 N. Y. 615. 6 N. Y. Surr. 1879, Matter of ^ N. Y. Surr. 1883, Thompson ». Hall, 7 Abb. N. C. 149. Mott, 1 Dem. 33; N.Y. Surr. 1885, 6 Code Civ. Proc. § 3533 ; Rule Henry «. Henry, 8 Dem. 333 ; 1 VII, ]Sr. Y. Surr.; N. Y. Surr. 1885, How. N. S. 397. Robert i>. Morgan, 4 Dem. 148 ; N. 136 LAW OF EEFEEEES. tions have been filed to the account or not ; ^ or to enable a party to frame his objections to the account.^ § 2. Proceedings on the Reference. — Neither the code nor the general rules contain any provisions for bringing on the hearing in references in this court. It has been held that the general rules of practice apply ,^ and the. same no- tice would be required as in reference to a master under the old chancery practice.* Under that practice, the mas- ter, on receiving the decree, or order, assigned a day and place of hearing, and gave to the party bringing the decree, or order, to be served on the adverse party, a summons to attend at the time and place named. The length of notice was discretionary, not less than two days being required where the solicitor for the parties resided in the town or city where hearing was to take place, four days where he resided sixty miles distant, and a proportionate time for other distances.^ When an account is referred, a creditor, or person interested, though not cited, may appear and contest the account,^ and may be represented by counsel who may examine the accounting party.'' An allegation by any person that he is a creditor, is sufficient to entitle him to the right to appear, and this whether he has presented his claim or not.^ When an infant is cited, a special guar- dian must be appointed, although he has a general guar- dian.^ If the adverse parties fail to appear after being duly cited, the accounting parties may proceed ex parte ;'" the verified account, and vouchers filed, are prima fade evidence in favor of the accounting party ,^^ but not conclu- 1 Code Civ. Free. § 3735 ; Geer ». s ]sf. y. Surr. 1882, Greene v. Day, Eansom, 5 Redf. 578. 1 Dem. 45. 2N. Y. Surr. 1879, Matter of » N. Y. Surr. 1878, Gunning v. Hall, 7 Abb. N. C. 149 ; Rule VII, Lockman, 3 Redf. 273. N. Y. Surr.; N. Y. Surr. 1878, Matter w Chancery, 1833, Kettell «. Rath- of Doug^lass, 8 Redf. 538. bone, 4 Paige, 102. a N. Y. Surr. 1883, Chatfleld v. » N. Y. Surr. 1882, Estate of Aus- Hewlett, 3 Dem. 191. tin, 3 Law Bui. 78; N. Y. Surr. < Rule 85. 1880, Valentine o. Valentine, 4 Redf. 6 Chancery Rule 100, amfe, p. 85. 265; Sup'm. Ct. 1865, Lansing -o. BCode Civ. Proc. § 3731; N. Y. Lansing, 45 Barb. 183 ; 31 How. 55 ; Surr. 1863, Greenes. Day, IDem. 45. Sup'm. Ct. 1874, Bainbridge ■». Mc- 'N.Y. Surr. 1877, Matter of Rich, CuUough, 3 T. & C. 486; 1 Hun, 3 Redf. 177. 488. EEFEEENCES IN THE SUBEOGATE'S COUET. 137 sive ; ^ they are sufficient to throw the burden of proof on the contesting party.* The accounting party may be ex- amined on oath touching his receipts and disbursements, or any other matter relating to the administration of the estate,^ and this whether formal exceptions have been filed or not.* In the city of New York, when the account has been referred, the contest will be confined to the matters objected to ; ^ on such examination the accounting party may be compelled to disclose the assets of a firm of which he and deceased were members, although the accounts of the firm are unsettled.^ It is immaterial whether such ac- counting be intermediate or final.'^ Production of books and papers may be compelled to show what those assets were.^ When disputed accounts are referred, the referee can pass only upon those to which objection is made. If (jhe objections are insufficient leave may be granted to file new ones.^ Legal and equitable claims may be investi- gated.-"' The mere fact that the executor or trustee has, in his account charged himself with sums of money does not estop him from saying he is not properly chargeable there- with.^^ A referee appointed under section 2546 possesses all the powers of a referee appointed by the supreme court for the trial of issues of fact in an action.''^ These powers have already been discussed.^^ The proceedings on taking and stating an account are the same as in a similar pro- ceeding in the supreme court.'* 1 1874, Peck v. Sherwood, 56 N. Ct. 1863, Woodruff v. Woodruff, 17 Y. 615. Abb. 165. 2 Kings Co. Surr. 1881, Carroll ». ' Sup'm. Ct. 1863, Woodruff v. Hughes, 5 Redf, 837 ; N. Y. Surr. Woodruff, 17 Abb. 165. 1880, Estate of Lilienthal, 3 Law ^N. Y. Surr. 1866, Matter of Bui. 98 ; N. Y. Surr. 1880, Valentine Stouvenel, 1 Tuck. 241. V. Valentine, 4 Redf. 265; 1878, » 1878, Boughton «. Flint, 74 N. Boughton ®. Flint, 74 N. Y. 476. Y. 476. 3 Code Civ. Proc. § 3735 ; N. Y. " 1878, Boughton v. Flint, 74 N. Surr. 1879, Matter of Hall, 7 Abb. Y. 476 ; N. Y. Surr. 1854, Upson v. N. C. 149. Badeau, 3 Bradf . 13. 4 N. Y. Surr. 1883, Geer v. Ran- " N. Y. Surr. 1877, Matter of Pol- som, 5 Redf. 578. look, 3 Redf. 100. 6 Rule VII, N. Y. Surr. 12 Code Civ. Proc. §§ 1018, 3546. 6 N. Y. Surr. 1866, Matter of i^ Ante, pp. 34, 40. et seq. Stouvenel, 1 Tuck. 341 ; Sup'm. w Ante, p. 94. 138 LAW OP EEFEEEES. § 3. Report of Beferee.^ — The form of the report is nowhere prescribed by the code nor by the general rules of prac- tice, and the rules of the old court of chancery apply.^ The report must contain the title of the cause, must be ad- dressed to the surrogate, must recite the substance of the order of reference, and must note the appearances before him.^ It is usually divided into two parts, the body and the schedules. The body is an epitome of the proceedings, with his findings and conclusions thereon, and refers to the schedules for detailed particulars.^ The testimony must be filed with the report,* but in references under section 2546 such testimony need not be signed by the witnesses.® Where findings of fact and conclusions of law are made, they should be stated separately.^ The provision requiring the report to be filed within sixty days has no application to special proceedings.'' The referee is not bound to file his report until his fees are paid,^ nor has the surrogate power to compel any one to pay the fees and take up the report, but if the referee shall file it without payment, pro- vision may be made in the final decree for the payment thereof by the parties chargeable therewith, or if any party shall pay them, the final decree may contain a provision for his reimbursement.^ The report should be confined to the matters referred to by the order. ^^ In New York city it will be confirmed as of course, unless exceptions thereto are filed within eight days after written notice of such fil- ing, and copy of the report.'''' Until confirmed it is not presumptive evidence of the matters therein set forth. '^ The surrogate may send back the case for a further report, and the referee may make a further report on the evidence 1 Rule 85. 8 N. Y. Surr. 1878, Matter of Fos- 2 1 Barb. Ch. Pr. [548.] ter, 3 Redf. 533. 3 1 Barb. Ch. Pr. [548]. ^ N. Y.Surr.l885, Matter of Kraus, * Rule 30. 4 Dem. 217. Compare Matter of 6 N. T. Surr. 1885, Matter of Rus- Foster, 8 Redf. 582. sell, 8 Dem. 377. " Sup'm. Ct. Sp. T. 1867, Herforth 6 Code Civ. Proc. § 1033. See p. b. Herforth, 2 Abb. N. S. 483. 54, ante. " Rule VIII, N. Y. Surr. ; Rule 30. ' Sup'm Ct. Sp. T. 1864, Godding ^2 n. Y. Surr. 1879, Estate of Mo- «. Porter, 17 Abb. 374. Evoy, 1 Law Bui. 64. SPECIAL PEOCEEDINGS IN VARIOUS MATTERS. 139 already taken.^ The report on a reference to take evi- dence and report with his opinion what compensation should be paid to an attorney on giving a substitution may be accepted in whole or in part, or altogether disregarded by the court.* CHAPTEE VII. SPECIAL PEOCEEDINGS IN VARIOUS MATTERS, Seotion 1. — Sale or mortgage of real estate of infant or lunatic. Section 3. — Proceedings to discover death of life tenant. Section 3. — Reference on appeal from commissioners of highways. Section 4. — Reference of controversy by trustees of insolvent debt- ors. Section 5. — Reference on voluntary dissolution of corporations. Section 6. — Reference of controversy by receivers of corporations. Section 7. — Reference of controversy by receivers of insolvent mutual insurance companies. Section 8. — Reference under the state banking act. § 1. Sale or Mortgage of the Keal Estate of an Infant or Lu- natic — Upon the presentation of a petition for the mortgage or sale of the real estate of an infant or lunatic, a referee must be appointed to inquire into the merits of the appli- cation.^ The word " must " is imperative ; the proceedings are void if a reference is omitted,* although it was formerly held in a matter arising under the revised statutes that the court had power, in a clear case, to proceed summarily without a reference.^ The referee must inquire into the truth of the matters alleged in the petition, and must hear 1 1875, Abercrombie u. Holder, * 1878, Matter of Valentine, 73 N. 63 N. Y. 638. Y. 184 ; 1875, Battell v. Torrey, 65 2 N. Y. Suit. 1883, Ohatfield v. N. Y. 394. Hewlett, 3 Dem. 191. « Sup'm. Ct. 1863, Matter of Mc- 3 Code Civ. Proc. § 3354. Ilvaine, 15 Abb. 91. 140 LAW OF EEFEEEES. the allegation and proofs of all persons interested ; ^ special reasons must be shown for authorizing the sale.^ That the income will be increased is not enough ;^ that the property is held in common, and is of small value compared with the expense of partition is.'* The order must be made at special term, not at chambers.^ When the proceedings are taken for the purpose of paying debts the referee should be directed to ascertain the amount of such debts, and any other facts necessary or proper on the application.® The facts must be proved by two disinterested persons besides the petitioner.''' The testimony must be signed by the witnesses and filed with the report.^ The order should direct the referee to ascertain whether a sale, mortgage, or lease of any, and what portion of the premises would be beneficial, and why, and whether the person in whose be- half such petition is presented is in absolute need of such sale, etc., for the purpose provided in section 2348 of the code, in addition to what he can earn by his own exertions, and also the value of the property or interest to be dis- posed of, specifically as to each separate lot or parcel, whether any one has an adverse interest, or life estate in the property, and the terms and conditions on which it should be sold.^ The report must not refer to the petition or any other paper for a statement of fact ; ^° it must state facts and conclusions, and not refer to the evidence for such statement.^^ The general form of the report is the same as in other special proceedings.^^ § 2. Proceedings to discover Death of life Tenant. — A referee may be appointed to take the proofs and allegations of the parties in proceedings to discover the death of the tenant 1 Code Civ. Proc. § 2354. « Rule 56 ; Sup'm. Ct. 1880, Mat- 2 Chancery, 1824, Matter of Ma- ter of Lampman, 22 Hun, 239. son, Hopk. 122; Chancery, 1846, 'Rule 56. Matter of Jones, 2 Barb. Ch. 22. 8 Rule 30. 3 Matter of Jones, 2 Barb. ch. 22. » Rule 56. * Chancery 1831, Matter of Cong- w Rule 56. don, 3 Paige, 566. i' Sup'm.Ct.l880, Matter of Lamp- 5 Sup'ra. Ct. Sp. T. 1856, Matter ' man, 22 Hun, 239. of Bookhout, 21 Barb. 348. la Ante, p. 113. SPECIAL PROCEEDINGS IN VARIOUS MATTERS. 141 for life.^ A certified copy of the order requiring the pro- duction of the life tenant, and appointing the referee, must be served upon the person required to make the production, or his attorney, at least fourteen days before the time fixed for the hearing.^ The referee has the same powers, and is en- titled to the same compensation as a referee appointed for the trial of an issue in an action.^ The general form of the report is the same as in other special proceedings,* must contain the conclusions of the referee upon the questions controverted before him,^ the proofs in the form of deposi- tions respecting the identity of the person so produced with the person whose death is in question ; or, if no person is so produced, upon the question whether the person is liv- ing,^ and must be delivered to the petitioner, or filed with the clerk within ten days after the case is closed.'' § 3. Reference on Appeal from Determination of the Commis- sioners of Highways. — On appeal from the determination of the commissioners of highways the county judge, or in case of his residence in the town, or his interest in the land through which the road shall be laid out, or in case he is of kin to any of the persons interested in said lands, or in case of his disability for any cause, then one of the justices of the sessions shall, after sixty days after the determina-. tion of said commissioners has been filed with the clerk, in writing appoint three disinterested free-holders who shall not have been named by parties interested in the appeal, and who shall be residents of the county, but not of the town where the road shall be located, as referees to hear and determine all the appeals that may have been brought within said sixty days ; shall notify them of their appoint- ment, and deliver to them all papers connected with the matter.^ Any party aggrieved may appeal from the decis- ion of the commissioners in laying out a road ; ® so may 1 Code Civ. Proc. § 3305. « Code Civ. Proc. § 2308. 2 Code Civ. Proc, § 2306. ' Code Civ. Proc. § 2308. 3 Code Civ. Proc. §2306 ; ante, pp. » L. 1847, Ch. 455, § 8. 32, 62. ' Sup'm. Ct. 1880, People v. Su- < P. 112, ante. pervlsors, 20 Hun, 196 ; 85 N. Y. 5 Code Civ. Proc. § 2308. 641. 142 LAW OF REFEREES. any resident and tax-payer liable to assessment for Ms highway labor.^ The referees so appointed possess all the powers and discharge all the duties heretofore held and discharged by three judges of the common pleas in similar cases.^ They have no power and can perform no duties beyond those expressly conferred, and such incidental ones as are necessary to discharge the functions of their office.* They have no authority to pass upon the jurisdiction of the commissioners ; their power is limited to an examination of the case on its merits.* Before proceeding to hear the appeals the referees must be sworn by some officer author- ized to take affidavits to be read in courts of record, faith- fully to hear and determine the matters referred to them.^ They must proceed to hear the appeal as soon as conven- ient, and where the determination appealed from was against an application for laying out, altering, or discontinuing a road, notice must be given to the commissioners by whom such determination was made. Where it is from a deter- mination in favor of laying out, altering or discontinuing, the notice must be given to the commissioners, and to one or more of the applicants. The notice must specify the time and place where the appeal will be heard ; ^ must be served at least eight days before the date of hearing by de- livering the same to one of the commissioners whose de- termination is appealed from, or by leaving the same at his dwelling house ; and if directed to an applicant must be served in the same way.''' Where there are two appeals from different commissioners in reference to the same road the same referees may be appointed by one order to hear both appeals.^ These are special proceedings ; ^ the ref- iSup'm. Ct. 1862, People «. Cor- sioners v. Judges, 13 "Wend. 432; telyou, 36 Barb. 164. Sup'm. Ct. 1878, People v. Sherman, 2 L. 1847, Ch. 455, § 8 ; Sup'm. 15 Hun, 575. Ct.l863,People «.Ferris,27 How.193. ^ l. 1347, ch. 455, § 8. 3 Sup'm. Ct. 1863, People 11. Per- 6 1 r. g. 513, § 87 ; 1875, People ris, 27 How. 193. v. Burton, 65 N. Y. 452. ■• Sup'm. Ct. 1863, People v. Cor- ' 1 R. S. P. 519, § 88. telyou, 36 Barb. 164 ; 1875, People » 1873, People 1). Kniskern, 54 N. «. Harris, 63 N. Y. 391 ; Sup'm. Ct. Y. 52. 1804, Lawton i>. Commissioners, 2 ^ Sup'm. Ct. Chamb. 1857, Peo- Cal. 179 . Sup'm. Ct. 1835, Commis- pie v. Flake, 14 How. 527. SPECIAL PROCEEDINGS IN TAEIOUS MATTERS. 143 erees become, for the time being, a court of inferior juris- diction,' and may meet outside the town in which the pro- posed road lies.* They do not sit to review the evidence or proceedings before the commissioners, but to hear all the evidence anew.^ The whole merits of the case, and the fitness or the unfitness of the alteration are before them ; * and they may hear and decide as well on facts shown on the hearing before them as on those existing at the time of making application to the commissioners.^ If they refuse to execute their trust, and dismiss the appeal on a preliminary objection, mandamus will lie to compel them to proceed.'' Where the appeal is from an order dis- continuing a road, the burden is on the respondent to show such road is useless, and unnecessary;'' any evidence tending to show that the road in question is not, nor ever can become a highway, or any other jurisdictional fact may be properly received.^ The referees may issue process to compel the attendance of witnesses, and may adjourn from time to time when necessary.' Their decision, or that of any two of them must be in writing, mtist be signed by those making it, must be filed by them in the office of the town clerk of the town, who shall record the same, and shall be conclusive in the premises.'" They may affirm in part, and reverse in part ; " but whether after reversing a determination not to lay out a highway, they have a right to inquire into the jurisdictional facts that lay at the bot- tom of the proceeding quereP If they reverse the decision iSup'm. Ct. 1857, Peoples. Flake, « Sup'm. Ct. 1863, People v. Cor- 14 How. 527. telyou, 36 Barb. 164. 2 Sup'm. Ct. 1883, People v. "' 1873, People v. Nichols, 51 N. Strevel, 27 Hun, 218. T. 470. 31879, Rector v. Clark, 78 N. Y. sgup-m. Ct. 1860, People d. Van 31 ; 1851, People v. Goodwin, 5 N. Alstyne, 33 Barb. 181. Y.'568; 1875, People «. Harris, 63 MR. S. P. 519, § 89. N.T. 391. 10 1 R. S. P. 519, § 89. <1851, People u. Goodwin, 5 N. " Sup'm. Ct. 1856, Peoples. Bak- Y. 568 ; 1875, People v. Harris, 68 er, 19 Barb. 340 ; Sup'm. Ct. 1880, N. Y. 891. People v. Supervisors, 20 Hun, 196, 5 1851, People «. Goodwin, 5 N. 85 N. Y. 641. Y. 568 ; Sup'm. Ct. 1863, People v. ^ 1875, People v. Harris, 63 N. Y. Albright, 14 Abb. 305. 391. 144 LAW OF REFEREES. of the commissioners refusing to lay out a road, they may make siich order in reference thereto as in their opinion the commissioners should have made ; ^ and must proceed and lay out the road applied for.^ Notice of laying out must be given to the parties interested ; notice of hearing the appeal is not sufficient.'^ With the written consent of the owner they may lay out the road through enclosed, improved, or cultivated land, though no certificate from twelve freeholders that such road is necessary has been made.* Strict technical exactness is not jurisdictional, and the judgment of the referees will not generally be inter- fered with if they exercise a reasonable discretion.^ In discontinuing a higl^way they may leave the road abutting on private property.^ After the hearing is closed, and the case is finally submitted for decision, it cannot be re- opened to receive further testimony on the merits;'' but where by accident or mistake a party has been denied a hearing, the cause may be re-opened and further evidence taken.^ Where the referees reverse the order of the com- missioners, and direct them to proceed and lay out the highway, their power is exhausted ; they have no power thereafter to proceed and lay it out.^ After they affirm the order of the commissioners they have no duty to perform other than to make and file their report.^" Where the ap- peal was from a refusal to lay out a road, the report must show that all met to deliberate, or had notice ; ^^ but where the appeal was from the laying out of the road, the report 1 Sup'm. Ct. 1863, People v. Al- 328 ; Sup'm. Ct. 1840, People ®. bright, 14 Abb. 305 ; 1853, People v. Judges, 23 "Wend. 360 ; Sup'm. Ct Commissioners, 8 N. Y. 476 ; Sup'm. 1860, People v. Taylor, 34 Barb. 481. Ct. Chamb. 1857, People «. Flake, •* 1873, People ». Nichols, 51 N. 14 How. 527. T. 470. 2 1875, People v. Harris, 63 N. T. ' Sup'm. Ct. 1863, People «. Fer- 391. ris, 27 How. 193. 3 1873, People v. Knlskern, 54 N. » Sup'm. Ct. 1863, People v. Fer- Y. 53, ris, 27 How. 193. ■•Sup'm. Ct. 1882, People®. Stre- "Sup'm. Ct. Sp. T. 1854, Rogers vel, 27 Hun, 318. v. Runyon, 9 How. 248. 5 Sup'm. Ct. 1863, People «. Al- i»1875,People«.Harris,63N.Y.391. bright, 14 Abb. 805 ; Sup'm. Ct. " 1875, People «. Burton, 65 N. 1840, Hallock «. Woolsey, 33 Wend. Y. 452. SPECIAL PROCEEDINGS IN VARIOUS MATTERS. 145 need not show that all met or were notified.^ Signature of the decision by any two is sufficient ; ^ their decision is not reviewable.^ The fees of the referees are two dollars per day for each day employed in the hearing and decis- ion, to be paid by the party appealing where the decision of the commissioners is confirmed, and is a county charge where their decision is reversed.* Only the amount allowed by statute can be charged.^ The affirmance of the decision of the commissioners gives a ■prima facie right to fees,- and such right is not suspended by certiorari to re- view the decision.^ They cannot be personally charged with costs ; '' but they are liable in damages for a false re- turn made by them.^ The liability of the appellants is joint, not several." § 4. Reference of Controversy by Trustees of Insolvent Debtor. — A controversy between the trustees of an insolvent debtor and any other person in the settlement of any demands against such debtor, or of debts due his estate, may be re- ferred to one or more indifferent persons, who may be agreed upon by the trustees and the party with whom such controversy shall exist, by a writing to that effect signed by them.^" This provision applies only to debts arising on contract, express or implied ; it has no reference to a claim of title to stock in a corporation ; '^ if the parties do not agree on such referees, either party may give ten days' no- tice of motion before the officer appointing such trustees, or to any judge of the supreme court, at chambers, for such 1 1875, People «. Burton, 65 N. » Ct. App. 1859, Disosway b. Wi- Y. 453. nant, 33 How. 460. 2 1 K. S. P. 519, § 89; 1875, Peo- ' Sup'm. Ct. 1878, People v. Sher- ple «. Burton, 65 N. Y. 453. man, 15 Hun, 575. 3 Sup'm. Ct. 1878, People ®. Sher- » 1879, Rector v. Clark, 78 N. Y. man, 15 Hun, 575 ; 1874, People v. 31. Betts, 55 N. Y. 600. » Ct. App. 1859, Disosway d. "Wi- 4 L. 1847, Ch. 455, § 9 ; Sup'm. nant, 33 How. 460. Ct. 1880, People t>. Supervisors, 30 i" 3 R. S. p, 45 § 19. Hun, 196. " Sup'm. Ct. 1843, Matter of Den- 6 Ct. App. 1859, Disosway t>. Wi- ny, 3 HiJl, 330. nant, 33 How. 460. 146 LAW OF KEFEBEES. appointment.^ On the day so specified, on due proof of notice, the officer shall select one or more referees, in ac- cordance with the rules and practice of the supreme court.^ If any of the witnesses reside outside the county of resi- dence of the trustees when appointed, the referee has the same power to issue a commission to take testimony as is possessed by a justice of the peace, and the testimony may be read in the like manner.^ The officer so selecting shall certify thereto in writing, such certificate or agreement shall be filed by the trustees in the office of a clerk of the supreme court, or in the office of a clerk of the common pleas in the county where the trustees were appointed, whereupon the clerk shall enter an order appointing the persons selected to determine the controversy ; * such ref- erees have the same powers and are subject to the like du- ties and obligations as referees appointed by the supreme court in personal actions ; ^ their report shall be filed in the office in which they were appointed, and is conclusive unless get aside by the court.^ Since they have the same powers and are subject to the same obligations as referees in actions, the report must contain findings of fact and con- clusions of law separately stated.'' Judgment may be en- tered on the report,^ unless such report is set aside on motion.' The statute fails to direct how judgment shall be entered, whether by the clerk on filing the report, or only by direction of the court. The old practice was to file the report and to enter a common rule for confirmation and judgment which expired after four days in term. Within that time, if at all, a motion was to be made to set aside the report; if not so made, the report was confirmed and judgment entered,^" a practice still preserved in refer- ences other than of issues." This mode of entering judg- 1 3 R. S. p. 45, § 20. 8 1870, Austin v. Rawdon, 43 N. 2 3 R. S. p. 45, § 31. y. 155 ; 1880, Crosby ii. Day, 81 N. 3 2 R. S. p. 45, § 32. Y. 242. 4 2 R. S. p. 45, § 33. 9 1870, Austin v. Rawdon, 42 N. 6 2 R. S. p. 45, § 24; ante, p. 35. T. 155. « 3 R. S. p. 45 § 35. 1" 1879, Austin «. Rawdon, 42 N. ' Code Civ. Proc. § 1022 ; ante, p. Y. 155. 54. 11 Rule 80. SPECIAL PEOCEEDINGS IN YAEIOUS MATTERS. 147 ment on the report of the referee for the trial of issues has been changed by subsequent enactments except in certain specified causes ; ^ but the right to move to set aside the report, before judgment, it would seem, still remains.^ The question is not free from doubt, and the safe course would seem to be to file the report and proceed under rule 30. . § 5. Keference on Application for Voluntary Dissolution of a Corporation. — A reference may be ordered in proceedings for the voluntary dissolution of a corporation.^ The ref- eree may be appointed in the order to show cause why the corporation should not be dissolved, or appointed when or after the order is returnable.* The general powers and duties of the referee are the same and the proceedings are conducted in the same manner as on other special proceed- ings." The hearings must be had in the place where the principal business office of the corporation is located.^ The proceedings are statutory, and the provisions of the code must be strictly followed ; othervsdse the court gets no juris- diction '' The original petition and the schedules must, upon the written order of the judge or referee, be trans- mitted to him to be used on the hearing.^ The form of the report is the same as on other special proceedings.® It must contain a statement of the effects, credits and other property, and of the debts and other engagements of the corporation, and all other matters pertaining to its affairs;^" a statement to the effect that the schedules annexed to the petition are correct, is insufficient." The motion for final dissolution on the report 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 by at- 1 Code Civ. Proc. § 1339. * Code Civ. Proc. § 3437. 2 3 R. S. 45, § 35. 9 j^nte, P. 113. 3 Code Civ. Proc. § 3423. ^ c^^g giv. Proc. § 3426 ; Sup'm. 4 Code Civ. Proc. § 3426. ^t. 1883, Matter of Pyrolusite Co., iAnU P. 110. 29 jj^^ 439 6 Sup'm. Ct. Sp. T. 1857, Matter , n^ looo t»t *+ * t. „-rrTi-u i T r. iKTi„rr » Sup'ni. Ct. 1883, Matter of PjTO- o£ Westchester Iron Co., 15 How. 7. ,_,^„ ^„ „„„.,„ .on ' ' Sup'm. Ct. 1883, Matter of Pyro- lusite Co., 29 Hun, 429. lusiteCo., 29 Hun, 429. 148 LAW OF EEFEEEES. torney, specifying a post office within the state where such notice may be served.^ § 6. Reference of Controversy by Receivers of Corporations. — Receivers of corporations have the same power to settle any controversy that shall arise between them and any debtors or creditors of such corporation by reference as is given by law to trustees of insolvent debtors.^ The man- ner of appointment, the powers and duties of such referees and the proceedings before them are the same and the re- port has the same effect as that of referees appointed by trustees in the case of insolvent debtors.^ As to such ap- pointment, powers and duties, see p. 145, ante. The statute is constitutional.* Before a compulsory reference can be ordered it must be made to appear that an offer had been made to agree upon a referee.^ The controversy may be referred, though an action has been begun, and fraud is set up in the answer.^ Where there is a dispute between the receivers of two savings banks, the court may compel them to make an agreement to refer.'' The reference is a special proceeding.^ The form of the report is nowhere prescribed, but since the proceedings are to be conducted in the same manner as in references in actions in the supreme court, it would seem that the form of the report should be the same. The provisions of Section 1019 of the code as to the time when the report must be filed have no reference to special proceedings.^ The report may be reviewed by motion to set aside or to confirm at special term.*" The court has authority to order judgment on the report.** The manner 1 Code Civ. Proc. § 2428. Bank v. Bowling Green Sav. Bank, 2 2 R. S. p. 469, § 73 ; 1880, Mat- 65 Barb. 275. ter of Croaby «. Day, 81 N. Y. 243. » Sup'm. Ct. 1865, Matter of Aus- 3 2 R. S. p. 469, § 73. tin, 44 Barb. 434. ■• 1880, Matter of Crosby -o. Day, » Sup'm. Ct. Sp. T. 1864, Godding 81 N. Y. 242; 1863, Sands v. Kim- b. Porter, 17 Abb. 374. bark, 27 N. Y. 147. i" 1870, Austin ». Rawdon, 42 N. 6 Sup'm. Ct. 1878, Wiekiiam t. Y. 155; below Matter of Austin, 44 Frazee, 13 Hun, 431. Barb. 434; 2 R. 8. p. 469, § 73. 6 1880, Matter of Crosby i). Day, " 1870, Austin v. Rawdon, 43 N. 81 N. Y. 242. Y. 155 ; reversing Matter of Austin, ' Sup'm. Ct. 1873. Guardian Sav! 44 Barb. 434. SPECIAL PEOCEEDINGS IN VAEIOUS MATTEBS. 149 of entry is tlie same as in other references under Bule 30.1 § 7, Keference of Controversy by Receiver of Insolvent Insur- ance Company. — Any controversy or disagreement between the receiver of a mutual insurance company and any mem- ber or stockholder thereof may be referred by written agreement between the parties, or may be compulsorily re- ferred by any justice of the supreme court in the district where the receiver keeps his office, on ten days' notice of motion.^ Said court may refer any action to which the re- ceiver was a party, pending when the act was passed, with- out prejudice to proceedings already had; ^ but this section has no application to actions begun after the act was passed.* Proceedings before such referee are brought to a hearing in the same manner as in actions in the supreme court.^ The referee may proceed in a summary manner to hear proofs and allegations upon written or oral pleadings, and has the same powers, duties and obligations, and may receive the same compensation as a referee appointed by the supreme court, and on his report judgment may be en- tered in like manner.^ The report must contain findings of fact and conclusions of law, separately stated.''' The report may be set aside on appeal from the judgment to the gen- eral term ; but such appeal shall not delay execution unless there is filed with the notice of appeal a certificate of a jus- tice that there is probable cause therefor ; nor unless secu- rity be given for the payment of the judgment and costs of appeal.** The referee, at any time after his appointment, and before issue joined, has the same power and authority to issue a commission to take testimony that a justice of the peace now has.^ The act is not in conflict with the constitution.!'^ Where the proceedings are begun for the 1 1870, Austin •«. Rawdon, 42 N. « L. 1863, Ch. 412, § 3. y. 155. ' Matter of Harmouy Co., 14 Abb. 2 L. 1863, P. 743, Cli. 412, § 1. N. 8. 293, n. 3 L. 1863, Ch. 413, § 5. ^ l. 1862, Ch. 413, § 3. * Sup'm. Ct. 1865, Sands v. Bride, ' L. 1862, Ch. 413, § 4. 29 How. 305. 1" 1863, Sands «. Kimbark, 37 N. 5L. 1863, Ch. 412, § 3; Ante, P. Y. 147; Sup'm. Ct. 1863, Sands ii. 34. Tillinghast, 34 How. 435. 150 LAW OF EEFEREES. collection of assessments, evidence of losses making the as- sessment necessary must be produced ; an ex parte affidavit of the receiver is insufficient.^ § 8. Reference under N. Y. Banking Act. — A justice of the supreme court may appoint a referee to apportion the debts and liabilities of an insolvent bank among the stockhold- ers ; ^ but such appointment can be made only after the re- ceiver has reported to the court a list and statement of the persons who are stockholders, the nominal amount of stock held by each, and the residence of the stockholders, so far as the same can be ascertained.^ No appeal can be taken from the order of reference.* The referee must give to each stockholder ten days' notice of his appointment, and of the time and place of hearing, by service personally on the stockholders residing in the county where the principal office or place for conducting business was situated, or by leaving a copy thereof at the residence of such stockholder with some person of suitable age ; and upon aU other stock- holders by pubKshing the same in one advertisement, con- taining the names of all such stockholders, for three weeks, in such newspapers as any justice of the supreme court may direct ; one of said newspapers to be the one designated by law for the publication of legal notices, and one, if such there be, printed in the county where the chief office for conducting the business of such corporation or association is located.^ The referee, on the hearing, must hear the allegations and proofs of all parties and persons interested, and must as- certain the persons who are chargeable, as stockholders, for the debts and liabilities, and the amount chargeable to each under the rules and principles of the N. Y. banking act ; the referee's statement is not conclusive.^ He must make a report to the justice holding the first special term of that or an adjoining county after six weeks from the date of his appointment, showing in detail the apportionment 1 1863, Sands v. Kimbark, 27 N. ^ Id. § 151. y. 147. 6 Id. § 141. 2 L. 188a, Ch. 409, § 140. « Id. § 143. 8 Id. §§ 139, 140. SPECIAL PBOCEEDINGS IN VARIOUS MATTEES. 151 made by him of the debts and liabilities among the stock- holders, with the proofs taken by him on such hearing. The justice may, if in his opinion it is necessary, to enable the referee to complete such apportionment, grant such further time, not exceeding ninety days, as may be neces- sary.^ On the final completion of such apportionment the report must be made to such special term of the supreme court, and the justice must examine the same and hear the allegations of the parties and persons interested, and may confirm, modify or amend the same, or send it back to the same or another referee, for further proof or examination.^ When finally confirmed, such report, and the order con- firming the same, must be filed in the office of the clerk of such county, as shall be directed by the justice. When so filed it is final and conclusive as a judgment against each stockholder for the amount found chargeable against him unless an appeal therefrom is duly entered and allowed.^ The expenses of the reference must be fixed by the justice confirming the report, and paid out of the funds in the hands of the receiver before making a dividend.* An ap- peal from the order of confirmation and the judgment en- tered therein is taken in the same manner and with like security as from judgment at special term in an action ; but when the receiver appeals he shall not be required to file security for costs.^ Upon the application of creditors or shareholders of any banking association whose debts or shares amount to one thousand dollars, a^d stating facts verified by affidavit, the supreme court may order a strict examination of all the affairs of such association, to be made by a referee to ascertain the safety of its investment and the prudence of its management.^ The powers and duties of such referee depend largely upon the terms of the order appointing him. He has the general powers and duties of a referee in special proceedings, and his report is in the same general form. 1 j^ 5 ^43 4 Id. § 146 ; 1883, Atty.-General 2 Id'. § 143 ; 1858, U. S. Trust Co. «. Continental L. I. Co. 93 N. Y. 45. «. Empire City Bank, 18 N. Y. 199. « Id. § 152. ■< Id. § 144; 1870, Austin i). Kaw- « L. 1883, Ch. 409, § 19. don, 43 N. Y. 155. 132 LAW OF EEFEEEES. PART IV. References in Particular Actions. CHAPTEE I. KEFEEENCES IN ACTIONS FOE FOEECLOSUEE. Section 1. — Reference of issues or part of issues. Sbotiosj 3. — Reference to compute amount due. Section 3. — Report on reference to compute amount due. Section 4. — Referee to sell, general powers and duties. Section 5. — Notice of sale. Section 6. — Re-sale. Section 7. — Deed of referee. Section 8. — Report of referee to sell. Section 9. — Fees of referee to sell. Section 10. — Reference as to surplus moneys. Section 11. — Report of referee as to surplus moneys. § 1. Reference of Issues or Part of Issues. — All the issues in an action for foreclosure of a mortgage upon real property may be referred by consent, except when a defendant who will be affected by the result of the trial is an infant.^ A compulsory reference may be ordered in such action where a long account is involved, and the trial will not require the decision of difficult questions of law ; ^ the proceedings to obtain a reference, the form of the order, the qualifica- tions of the referee, the proceedings on the trial, the rights and duties of the referee, and the report are the same as in the reference of an action at law.^ Any one of the issues in such action may be referred by a compulsory order, or the referee may be ordered to report findings on any spe- iCode Civ. Proc. §§ 1011, 1012. 2 Code Civ. Proc. § 1013 ; ante, P. 3 AnU, P. 28, et seq. 13, et seq. BEPEBENCES IN ACTIONS FOB FORECLOSUKE. 153 cific questions of fact/ but a compulsory reference of part of the issues can be ordered only in actions involving a long account triable by the court without a jury.^ If part only of the issues are referred the order should determine whether they shall be tried before, or after the trial of the action ; ^ if the referee is directed to report findings upon any specific questions of fact, judgment must be rendered on the whole issues on application to the court.* When the issue last tried is tried before a referee he must award the proper judgment on the whole issue, unless otherwise directed in the order of reference.^ To enable him to award the proposed judgment in such case the referee may make a computation, or assessment, or take an account, or proof of a fact, and may ascertain and fix the damages as a jury may do, upon the execution of a writ of inquiry.^ On a reference to compute after decree, evidence of fraud in obtaining the mortgage is admissible^ Where the mort- gage is given for goods sold the referee of the issue should ascertain the state of the accounts, and judgment should be given only for the amount due not exceeding the sum named in the mortgage.^ The referee of the issues has jurisdiction over costs.® His error in reference thereto can be corrected only by appeal from the judgment.^" The qualifications of the referee and his powers and duties on the trial of the issues are the same as on the trial of issues in other actions.^^ § 2. Reference to compute Amount due. — Where the defend- ant fails to answer within the time allowed, or the right of plaintiff as stated in the complaint is admitted by the an- 1 Code Civ. Proc. § 1013. '^ Code Civ. Proo. § 1233. 2 Code Civ. Proo. § 1013 ; Sup'm. ' 1853, McCraoken v. Valentine, Ct. 1878, Barnes v. West, 16 Hun, 9 N. Y. 43. 68 ; Sup'm. Ct. 1880, Dane v. Liver- ^ Sup'm. Ct. 1883, Irwin v. O'Con- pool &o. Co. 31 Hun, 359. nor, 15 Week. Dig. 134. 3 Code Civ. Proc. § 1014. ^ Sup'm. Ct. 1870, Stevens v. Va- 4 Code Civ. Proc. §§ 1231, 1226; riane, 2 Lans. 90. see interlocutory references, ante, '" Sup'm. Ct. 1878, Losee v. Ellis, P. 93, et seq. 13 Hun, 655. 6 Code Civ. Proc. § 1221 ; see anU, " ante, PP. 6, 35 ; Code Civ. Proc. P. 92, et seq. § 1018. 154: LAW OF EEFEREES. swer, a reference may be ordered to compute tlie amount due to plaintiff, and to such of defendants as are prior en- cumbrancers, and to examine and report whether the prem- ises can be sold in parcels, if the whole amount secured by the mortgage has not become due.'' If defendant is an in- fant, and has put in a general answer by his guardian, or if any of defendants are absentees, the order shall also direct the referee to take proof of the facts and circumstances stated in the complaint, to examine the plaintiff on oath as to any payments made, and to compute the amount due on the mortgage preparatory to the application for judg- ment.*^ The moving papers must show whether all the moneys secured by the mortgage have become due and payable, and whether any of the defendants are absentees or infants, and that a notice of pendency of action was properly filed.^ The reference to compute cannot be or- dered where a defendant who failed to appear on the trial has put in an answer raising a material issue,* nor where any defendant against whom a judgment for deficiency is asked has not been served, or has been served only with notice of no personal claim ; ^ nor can a reference to com- pute as to a defendant who has not answered be combined with one for the trial of the issues as to those who have.^ The referee must be selected by the court, and cannot be nominated by either partyJ Under a similar rule (73 of 1871) ^t was held that the appointment of a person nomi- nated by one party and approved by the other was no ir- regularity.^ Where some of the defendants are absentees the order should be to take proof of the facts and circum- stances set forth in the complaint, and to report the proofs and examinations had before him.^ The reference is inter- 1 Rule 60 ; 1867, Chamberlain u. » N. Y. Super. 1866, Goodyear k. Dempsey, 36 N. Y. 144. Brooks, 27 Super. 683. 2 Rule 60 ; Sup'm. Ct. Sp. T. 1847, ^ Sup'm. Ct. 1857, Cram v. Brad- Walcott «. Weaver, 3 How. 159. ford, 4 Abb. 193. 3 Sup'm. Ct. Sp. T. 1847, Auony- ' Rule 61. mous, 3 How. 158 ; Rule 60. » Sup'm. Ct. 1874, White v. Coul- * Sup'm. Ct. Sp. T. 1878, Exchange ter, 3 T. & C. 608. Co. V. Early, 4 Abb. N. C. 78. ^ Sup'm. Ct. Sp. T. 1847, Wolcott, v. Weaver, 3 How. 159. REFERENCES IN ACTIONS FOR FORECLOSURE. 155 locutory, and the hearing is brought on in the same man- ner as other interlocutory references.^ The reference may be had to the clerk, although he is not in the county where the action is triable, may proceed at once, and judgment may be entered on the same day.^ On a reference merely to compute on default, the referee need not be sworn ; ^ but where an answer has been interposed the referee must take the oath, although the defendant so answering did not ap- pear on the trial.* The referee acts as an examiner, and plaintiff must prove by legal evidence every material fact set forth in the complaint.^ An affidavit verified before a notary or commissioner of deeds is insufficient.^ The recital of the bond in the mortgage is sufficient proof of its execution.''' Plaintiff does not, by putting in evidence and allowing defend- ant to do so, lose the benefit of admissions by failure to deny allegations of the complaint.^ That the trustee for bond- holders states the amount of bonds secured less than it really is does not prevent the referee from reporting the true amount ; ^ in such case the referee may take evidence as to, and report upon the validity of the bonds secured.^" Taxes are a legal charge upon the estate, and may be in- cluded in the amount due ; otherwise of insurance.^* The referee to compute the amount due to the mortgagee and to prior encumbrancers cannot determine the question of priority.''^ Strict proof is necessary where infants and ab- sentees are concerned.'^ Where the debt secured was for coal supplied and to be supplied, the referee must state the 1 AnU, P. 84. ' Sup'm. Ct. 1863, Cooper v. New- 2 Sup'm. Ct. Sp. T. 1857, Kelly v. land, 17 Abb. 343. Searing, 4 Abb. 354. * 1874, Darling «. Rogers, 55 N. 3 N. y. Super. Sp. T. 1878, Mc- Y. 667. Gowan v. Newman, 4 Abb. N. C. » i881. Peck v. N. Y. Co. 85 N. 80 ; 54 How. 458 ; compare Ex. F. Y. 246. I. Co, V. Early, 54 How. 379. i" Sup'm. Ct. 1880, Boekes v. Hath- 4 Com. PI. Sp. T. 1878, Exchange orne, 20 Hun. 503. Co. «. Early, 4 Abb. N. C. 78; 54 "Chancery, 1821, Faure «. Wi- How. 279. nans, Hopk. Ch. 283. 6 Sup'm. Ct. Sp. T. 1847, Wolcott ^ Chancery, 1849, Harris v. Fly, ■B. Weaver, 3 How. 159. 7 Paige, 421. 6 Sup'm. Ct. Chamb. 1863, Se- is Sup'm. Ct. Sp. T. 1847, Wol- curity Co. «. Martin, 15 Abb. 479. cott v. Weaver, 3 How. 159. 156 LAW OF EEFEEEES. account and ascertain the amount due ; ^ on such reference the testimony need not be signed by the witnesses.* § 3. Report of Referee on Reference to Compute. — The re- port must be made within sixty days ; ^ the form is the same as in other interlocutory references.* The referee must state the facts upon which his conclusions are based,^ and attach thereto an abstract of the documentary evi- dence,^ but is not obliged to set forth the items that make up the gross sum.'' He must state whether the mortgaged premises are so situated that they can be sold in parcels ; ^ if he finds the property can be sold in parcels he should state their relative situation and value, and which should be first sold, and such other facts as may be necessary to inform the conscience of the court.^ Where priority is claimed for a mortgage set up in the answer, he can only compute the amount due thereon ; he has no authority to decide the question of priority -^^ when the mortgagee has been compelled to pay rents to preserve his security, the amount so paid may be included in the amount found due if the action is against the mortgagor or his grantee with notice,^^ but not where it is against grantee without notice.''* The amount paid for taxes may also be included,'^ but not insurance, except by express agreement of the parties.''* The computation is not conclusive on the court, and may 1 Sup'm. Ct. 1882, Irwin «. O'Con- « Sup'm. Ct. Sp. T. 1858, Gregory nor, 15 Week. Dig. 124. ■». Campbell, 16 How. 417; Selkirk 2 Rule 30. 1!. Asoough, 116 Ab. L. J. 151 ; 3 Code Civ. Proo. § 1019. Chancery, 1830, Ontario Banks. » Ante, P. 88. Strong, 2 Paige, 301. 6 Sup'm. Ct. Sp. T. 1847, Wolcott 'o Chancery, 1839, Harris v. Fly, v. Weaver, 3 How. 159. 7 Paige, 421. 6 Sup'm. Ct. Chamb. 1863, Securi- " 1874, Catlin i). Grissler, 57 N. Y. ty Co. ■». Martin, 15 Abb. 479. 363 ; 1862, Robinson v. Ryan, 25 N. ' 1882, Sidenberg v. Ely, 90 N. Y. Y. 320. 257. 12 1863, Robinson v. Ryan, 25 N.T. 8 Sup'm. Ct. Sp. T. 1858, Gregory 320. «. Campbell, 16 How. 417 ; Selkirk " Chancery, 1824, Faure v. Wi- v. Ascough, 16 Alb. L. J. 151; nans, Hopk. 283. Chancery, 1830, Ontario Bank v. " Chancery, 1824, Faure v. Wi- Strong, 2 Paige, 301. nans, Hopk. 383. EEFEEENCES IN ACTIONS FOE FOEECLOSUEE. 157 be sent back for further findings.^ The motion to confirm and for judgment must be made at special term, not at chambers.^ When confirmed, the report becomes the act of the court.^ It is not necessary that the report of the referee appointed in the decree to compute should be con- firmed and final judgment ordered by the judge who tried the cause.* § 4. Referee to Sell, General Powers and Duties. — The referee to sell in foreclosure may be appointed in the judgment, or by motion at special term.^ He must be selected by the court ; one nominated by either party cannot be appointed,® but the appointment of a person named by one and ap- proved by the other party has been held to be no irregu- larity ; '' the notary before whom the affidavit to move for the reference was verified cannot be selected.^ The diities of such referee are ministerial. If he disregards, or varies from the terms of the judgment, he does so at his peril, and is lia- ble for losses caused thereby, including costs of proceedings against him for disobedience ; ^ in making the sale he acts as an officer of the court, not as the mere agent of the plaintiff, and the court will relieve against an improper ex- ercise of his discretion.'"' When the mortgage covers sev- eral lots, one of the defendants may have a reference, even after decree, to ascertain the equities of different defend- ants, and report upon the order in which the premises should be sold ; " the sale must be in parcels where the mortgage covers several separate lots;^^ a re-sale will be ordered where a request to sell in parcels was improperly 1 1874, Austin v. Aheame, 61 N. « Rule 61. Y. 6. ' Sup'm. Ct. 1874, White v. Coul- 2 Sup'm. Ct'. 1876, Empire Ass'n. ter, 1 Hun, 357 ; 59 N. Y. 639. V. Stevens, 8 Hun, 515; 1850,Swarth- sgup-m. ct. Sp. T. 1880, Steward out «. Curtis, 4 N. Y. 415. ■». Bogart, 2 Law Bui. 94. 3]Sr. Y. Super. Bp. T. 1878, Mc- 9t873,People«.Bergen,53N,Y.404. Gowan v. Newman, 4 Abb. N. C. 80. i" Sup'm. Ct. Sp. T. 1855, Breese * 1867, Chamberlain v. Dempsey, v. Busby, 13 How.' 485. 36 N. Y. 144. " Sup'm. Ct. Sp. T. 1847, Bardu. 5 Rule 61 ; Sup'm. Ct. 1874, Mun- Steele, 3 How. 110. dorf V. Mundorf, 1 Hun, 41. '^ Code Civ. Proc. §§ 1437, 1678; 158 LAW OF EEFEKEES. refused,^ but a sale in parcels is not a matter of absolute right if, when the mortgage was made, the property con- sisted of a single tract which has been subsequently di- vided into lots.^ If a grantee of part of the premises is en- titled to a right of way, or other easement in part of the premises, such portion must be sold subject to such ease- ment.* The statute as to sale in parcels is directory; a violation thereof does not make the sale void, but void- able.* A sale will not be set aside for failure to sell in parcels if no request therefor was made, and the referee was satisfied the property would sell better in bulk.^ Since the amendment of 1881 to section 1678 of the code of civil procedure, the court may in any case direct a sale in parcels of distinct buildings and lots,^ and when the property has been conveyed in different parcels the court may direct the order of sale ; '' unless so directed the order of sale is in the discretion of the referee where the premises adjoin, and are owned by one person.^ When the premises are sold after the giving of the mortgage to different purchasers, the parcels should be sold in the inverse order of their alienation, according to the equitable rights of the different purchasers as between themselves." The decree or order should direct the referee to seU in the inverse order of Sup'm. Ct. Sp. T. 1862, Wolcott «. 6 Com. PI. 1880, McLaughlin v. Schenck, 23 How. 385 ; N. Y. Super. Teasdale, 9 Daly, 23. 1862, Griffiths «. Hadley, 23 Super. 6 Sup'm. Ct. Sp. T. 1888, Rey- 588 ; Chancery, 1841, Am. Ins. Co. nolds v. Telfair, 5 Law Bui. 21. V. Oakley, 9 Paige, 259. ' 1872, Hart v. Wandle, 50 N. T. 1 Sup'm. Ct. Sp. T. 1863, Wolcott 381 ; 1872, Erie Co. Bank «. Roof, V. Schenck, 38 How. 385; Sup'm. 48 N. Y. 393; Sup'm. Ct. Sp. T. Ct. 1875, Vandercook v. Cohoes Co. 1873, State Bank «. Hibbard, 45 5 Hun, 641. How. 280; Sup'm. Ct. 1883, Van 2 Sup'm Ct. 1877, Ellsworth v. Slyck v. Van Loan, 26 Hun, 344. Lookwood, 9 Hun, 548 ; Sup'm. Ct. « Sup'm. Ct. 1863,'Whitbeek ®. 1877, Lane ii. Conger, 10 Hun, 1 ; Rowe, 25 How. 408. 1885, Bernhardt v. Lymburner, 85 ^ 1849, Crafts v. Aspinwall, 2 N. N. Y. 172. See Code Civ. Proc. § 1437. Y. 289 ; Chancery, 1847, Stuyvesant s Chancery, 1846, N. Y. L. & T. ». Hall, 2 Barb. Ch. 151 ; 1881, Bern- Co. J). Milner, 1 Barb. Ch. 353. hardt v. Lymburner, 85 N. Y. 173 ; 4 1858, Cunningham «. Cassidy, Chancery, 1846, N. Y. L. & T. Co. 17 N. Y. 276 ; Com. PI. Sp. T. 1881, v. Milnor, 1 Barb. Ch. 353, Wallace v. Feely, 61 How. 225. EEFEKENCES IN ACTIONS FOE FOEECLOSUBE. 159 alienation, according to equity as between the several de- fendants, leaving the referee to settle the order of sale upon the principles of equity.^ Where three mortgages on the same property, made and recorded at the same time, are foreclosed, and judgments directing sale are entered at the same time, the referee has no power to create a preference of one judgment over the other.^ If he makes a sale not au- thorized by the decree, the remedy is by application to the court for a re-sale.^ The terms of sale cannot vary the judg- ment, or relieve the referee from the performance of his du- ties.* The referee has no power, unless expressly given in the judgment, to allow to a purchaser the amount of a prior mortgage, and receive from him only the balance of the pur- chase money ; ^ but if, at the request of the purchaser, and for his benefit he varies the order of payment prescribed in the judgment, such purchaser cannot be heard to com- plain.^ If the purchaser fail to produce proof of Hens the referee should apply to the court for instructions.'' A re- quest that the sale should not be had on Election Day should be granted.* It is the duty of the referee at the time and place of sale, 1st, to anuounce the terms of sale if they are not contained in the notice thereof ; 2d, to offer 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 ; 3d, after marking down the premises to the highest bidder to require him to sign a memorandum of sale and an agreement to complete the same. If at the time appointed for the sale there are no bidders, or if from the numbers in attendance, or other sufficient causes the officer is satisfied that a fair price can- 1 Chancery, 1841, Kathbone v. ^ N. Y. Super. 1876, Bache v. Clark, 9 Paige, 648. See Bernhardt Doscher, 61 Super. 150 ; 67 N. Y. V. Lymburner, 85 N. Y. 173. 429. - Sup'm. Ct. 1878, Eleventh Ward ^ 1878, Easton v. Pickersgill, 75 Bank v Hay, 55 How. 444. N. Y. 599. 3 Ct. App. 1868, Hotchkiss v. Clif- ' 1878, Easton «. Pickersgill, 75 ton Co., 4 Keyes, 170. N. Y. 599. * 1873, People v. Bergen, 53 N. " 1867, King v. Piatt, 37 N. Y. Y. 404. 155. 160 LAW OF BEFEREES. not be obtained, he sbould postpone tbe sale.^ It is an unreasonable exercise of discretion to refuse to adjourn the sale for twenty minutes to allow an order staying proceed- ings to arrive." The purchaser is bound by the terms of sale.^ It is not essential to the validity of the contract that the purchaser should sign the memorandum of sale ; the signature of the officer making it is sufficient.* The referee must demand money for property sold, and if not paid must then and there avoid the sale and re-sell the property or postpone the sale, giving notice, and make a new sale at a subsequent time. If he gives credit, or takes anything but money, he is liable therefor." He may be compelled to give security for the proper application of the moneys arising from the sale.^ Except when otherwise expressly prescribed by law the sale must take place in the county where the property is situated.''' Unless othervsise expressly directed in the decree the referee must, out of the proceeds, pay all taxes, assessments, and water rates, and redeem the property from sales for unpaid taxes, assess- ments, or water rates, which have not apparently become absolute, and the sums so paid are to be deemed expenses of the sale.^ The referee to sell, or the guardian for an infant party, cannot, nor can any person for his or their benefit, directly or indirectly, purchase, or be interested in the purchase of, any of the property, except that the guar- dian may, when he is authorized so to do, purchase for the benefit, or on behalf of his ward. The violation of this sec- tion is a misdemeanor, and a purchase made contrary to this section is void.^ § 5. Notice of Sale.— Where the property is not situated wholly or partly in a city in which a daily paper is pub- 1 Sup'm. Ct. Sp. T. 1863, Blck- Ch. 659 ; Chancery, 1847, Nat. Ins. nell V. Byrnes, 23 How. 486. Co. v. Loomis, 11 Paigo, 431. 2 Sup'm. Ct. Sp. T. 1855, Breese « igsg, Robinson v. Brennan, 90 i>. Busby, 13 How. 485. N. Y, 208. 31872,HartD.Wand)e,50N. Y.381. « Code Civ. Proo. § 1243. < Sup'm. Ct. Sp. T. 1862, Biok- ' Code Civ. Proc. § 1242. nell «. Byrnes, 33 Hun, 486; Chan- » Code Civ. Proo. § 1676. eery, 1820, MeComb ii. Wright, 4 J. » Code Civ. Proc. § 1679. EEFEEENCES IN ACTIONS FOR FOEECLOSUBE. 161 lished, a written or printed notice must be conspicuously posted at least forty-two days before the sale, in the town or city where the sale is to take place, and also in the pub- lic places where the property is situated if the sale is to take place in another town or city, and a copy of the notice must be published once in each of the six weeks imme- diately preceding the sale, in a newspaper published in the county if there is one ; if none, in a paper designated by the court ordering the sale ;^ and if the property is situated wholly, or partly in a city in which a daily newspaper is published, the notice may be given by publishing the same twice a week for the three successive weeks immediately pre- ceding the sale in one, or in the cities of New York or Brooklyn in two such papers.^ The property must be de- scribed with common certainty, by setting forth the name of the township or tract, and the number of the lot, if any, or by some other appropriate description ; ^ should contain the description and particular boundaries so far as the same can be ascertained from the mortgage.* The title of the cause is not essential, but the better practice is to in- sert it ; ^ nor need a sale in parcels be announced in the notice, although the judgment directs that the sale be so made.^ In the cities of New York and Brooklyn the sale must be between the hours of twelve and three o'clock, un- less otherwise specially directed in the decree, must be at public auction, notice whereof must be given in accordance with the code, and in the city of New York must be at the exchange salesroom, subject to the regulation of the su- preme court, the superior court, or the court of common pleas.''" A week is a definite time, beginning on Sunday and ending on Saturday.® The publication is sufficient if pub- lished once in each week for six successive weeks, although six full weeks have not elapsed between the first and last 1 Code Civ. Proc. §§ 1434, 1678. " Sup'm. Ct. 1880, Hoffman v. 2 Code Civ. Proc. § 1678. Burke, 31 Hun, 580 ; 1860, Alcott v. 3 Code Civ. Proc. § 1435. Robinson, 21 N. Y. 150. * Rule 61. ' Rule 63. 6 Chancery, 1837, Ray v. Oliver, 6 8 Com. PI. Sp. T. 1873, Steinle v. Paige, 489. Bell, 13 Abb. N. S. 171. 162 LAW OF REFEBEES. publications.! Publication Dec. 9, 12, 16, 19, 23, and 26 for a sale Dec. 28 is a publication twice in each week for tiiree weeks ; ^ so is publication April 27, 30, May 4, 7, 11, 14, and in one paper May 20, of a sale on May 20.^ It is not necessary that the notice should appear in all the editions of the paper issued on the day of publication.* Personal service of notice on the mortgagor is unnecessary. The sale is valid if made without his knowledge ; ^ nor is the sale viti- ated by an amendment of the judgment pending publication.^ It may be adjourned in a proper case'' as where a stay has been granted.^ Failure to advertise the adjournment is not a jurisdictional defect, especially where no one has been misled.' The adjourned day should be named, but if omitted by defendant's fault the sale is not vitiated.'" Notice of such adjournment must be published." If there is a variance between the day announced and that stated in the published notice the sale will be irregular.'^ § 6. Ee-Sale. — When the time for selling pursuant to no- tice has passed, and no valid sale has been made, or if valid the party elects to disregard it, the referee cannot sell again without the authority of the court unless he again advertise the sale.-^ If, by the terms of the sale the moneyis to be paid "down, and the purchaser does not on demand, pay the mon- 1 Com. PL Sp. T. 1873, Steinle i>. La Farge «. Van Wagonen, 14 How. Bell, 13 Abb. N. S. 171; 1871, Wood 54; Sup'm. Ct. Sp. T. 1863, Bick- 13. Morehouse, 45 N. Y. 368 ; 1860, nell «. Byrnes, 23 How. 486. Aloott v. Robinson, 31 N Y. 150. * Sup'm. Ct.l876, Ward v. James, 2 N. Y. Super. Sp. T. 1862, Cham- 8 Hun, 536 ; Sup'm. Ct. Sp. T. 1857. berlain v. Dempsey, 13 Abb. 421. La Farge v. Van Wagonen, 14 How. 3 Sup'm. Ct. 1882, Valentine v. 54. McCue, 36 Hun, 456. ^ Sup'm. Ct. 1887, Bechstein v. * Sup'm. Ct. 1880, Everson v. Sohultz, 19 Abb N. C. 168. Johnson, 22 Hun, 115. i" Sup'm. Ct. Sp. T. 1857, La Farge 5 Sup'm. Ct. Sp. T. 1853, West- v. Van Wagonen, 14 How. 54. gate «. Handlin, 7 How. 372 ; Sup'm. " Sup'm. Ct. Sp. T. 1857, La Farge Ct. 1881, Gallup «. Miller, 35 Hun, «. Van Wagonen, 14 How. 54. 398. 12 Sup'm Ct. 1847, Miller «. Hull, « Sup'm. Ct. 1882, Valentine v. 4 Den. 104. MoCue, 26 Hun, 456. " Sup'm. Ct. Sp. T. 1863, Bicknell ' Sup'm. Ct. 1876, Ward e. James, i). Byrnes, 33 How. 486. 8 Hun, 536 ; Sup'm. Ct. Sp. T. 1857, EEFEKENCES IN ACTIONS FOE FOBECLOSUEE. 163 ey, then the referee should at once proceed and offer the premises again for sale.^ Where the purchaser objects to the title and a re-sale is ordered, it must be upon sub- stantially the same terms as the first sale ; if materially different, the first purchaser is released from liability for the deficiency.^ If the re-sale is ordered in parcels, it is not necessary that the notice should so state."* Where the title fails, the full amount of purchase money paid must be returned to the purchaser.* The auctioneer is entitled to no fees for the adjournment of the sale.^ A re-sale may be ordered where the price was inadequate, and the terms of sale required payment of twenty-five dollars for auctioneer's fees.^ § 7. Deed of Referee. — The deed of the referee must comply strictly with the provisions of Section 1244 of the Code of Civil Procedure ; '' must contain the names of the parties who executed the mortgage sought to be fore- closed, and must state that the right, title and interest which said mortgagors had at the time of the execution of the mortgage was sold and is conveyed.^ Valid and sufficient deed is a deed in form and terms sufficient to give to the purchaser a title as valid as is in the power of the referee to give.^ § 8. Referee to Sell, Report of Sale. — The report of sale should be filed immediately after the proceedings are com- pleted, should contain a statement of the proceedings un- der the order, and must be accompanied with a proper voucher for the surplus moneys, showing that they have been paid over, deposited, or disposed of in pursuance of 1 Sup'm. Ct. Sp. T. 1862, Bicknell « Sup'm. Ct. 1878, Arnold t. Eg- V. Byrnes, 23 How. 486. bert, 7 Week. Dig. 266. 2 1878, Rigg3 V. Eursell, 74 N. Y. ' Sup'm. Ct. 1877, Randell v. Van 370. EUert, 54 How. 363 ; 4 Abb. N. C. 3 Sup'm. Ct. 1880, Hoffman v. 88. Burke, 10 Week. Dig. 347. » Code Civ. Proc. § 1244 ; Sup'm. ■« Sup'm. Ct. 1872, Raynor v. Ct. 1877, Randell v. Van Ellert, 54 Selmes, 7 Lans. 440. How. 363 ; 4 Abb. N. C. 88. 5 Sup'm. Ct. 1876, Ward v. James, ' 1873, Easton «. Piokersgill, 55 8 Hun, 526. Jf. Y. 310. 164 LAW OF EEFEEEE8. the judgment.^ No notice of filing need be given, nor is an order of confirmation necessary.*^ The sale alone does not divest the title of the mortgagor ; the title is not com- plete until the report of sale is confirmed.^ Exceptions thereto may be filed after the time therefore has expired by defendant who had no notice of such fihng, although such defendant did not appear until after judgment.* A referee who in his report admits that he has allowed to a purchaser the amount of a prior mortgage he was not directed by the judgment to pay, may be ordered on motion to pay into court the surplus over the payments ordered in the decree.^ Where he has made an error that could have been corrected in the court below, but has made no request therefor, he should be charged with costs of appeal.^ If the report is erroneous, the court will, in a proper case, permit the referee to make a new one." It cannot be sustained by afiidavits tending to show the sale was made in terms other than those stated in the report.^ One having an interest in the surplus may file exceptions to the report, though not a party to the action.^ Where it appears on the face of the report that the alleged deficiency was caused by crediting the purchaser with the amount of a prior mortgage, without express direction therefor in the decree, no judgment for deficiency can be entered.^" Where the position of the referee as to the moneys is not changed, delay of two years is not such laches as will de- feat a motion to compel a referee to satisfy liens.'''' § 9. Fees of Referee to Sell. — The fees of a referee to sell 1 Kule 61. 7 ]sr. Y. Super. 1879, Koch®. Pur- 2 Sup'm. Ct. 1876, Moore v. Shaw, cell, 45 Super. 163. 15 Hun, 428 ; See Peck ». Knicker- ^ n. Y. Super. 1879, Koch v. Pur- booker Co. 18 Hun, 183. ^^jj ^g g ^g^^ 3 Sup'm. Ct. 1879, Peck «. Knick- erbocker Co. 18 Hun, 183. ' ^- Y- Super, 1879, Koch .. Pur- 4 1877, Martin «. Lowenstein, 68 <=«"■ ^^ S"?""^- 1«'- N. Y. 456. ^" N. Y. Super. 1876, Baohe v. ° N. Y. Super. 1879, Kooh v. Pur- Doscher, 41 Super. 140. cell, 45 Super 162. ^i 1881, Weseman v. Wingrove, 85 6 N. Y. Super. 1879, Koch v. Pur- N. Y. 353. cell, 45 Super. 163. EEFEEENCES IN ACTIONS FOE FOEECLOSUBE. 165 in foreclosure are the same as those allowed to a sheriff, and the disbursements allowed are the same.^ He cannot make a valid contract for a higher rate.^ In no event can he receive more than fifty dollars for his compensation.^ For receiving and entering the decree he is entitled to fifty cents, for advertising the sale two dollars, unless it is stayed or settled before sale, when it shall be one dollar, and commissions on the moneys received and paid out at the rate of ten per centum on two hundred and fifty dollars, two per centum on the residue.* In the counties of New York, Kings and Westchester the poundage is two and one-half per centum on the first one hundred and fifty dol- lars, and one and one-quarter on the residue.^ Poundage can be allowed only on moneys received and paid out, not on moneys deposited with the chamberlain ; ^ nor on a mortgage subject to which the sale is made." In the city of New York the fees of a referee to sell are governed by L. 1869, ch. 569, as amended by L. 1874, ch. 192.8 Under this act the fees in New York are for receiving and posting the notice of sale, ten dollars ; for attending the sale, ten dollars ; for each deed, five dollars ; for each adjournment at the request of plaintiff, not exceeding three dollars ; for making report of sale, five dollars ; for paying over surplus, three dollars.^ He may charge as disbursements printer's fees at the rate allowed by law, fees of ofiicers for taking acknowledgments and administering oaths, auctioneer's fees at the rate of twelve doUars for each parcel, which auc- tioneer's fees shall be paid by the purchaser.^" These acts are hmited as to the fees of referees by § 3297 of the Code 1 Code- Civ. Proo. §§ 3397, 3307, ' Sup'm. Ct. Sp. T. 1880, Strauss 3308; Sup'm. Ct. Sp. T. 1881, Ma- ii. Hellmau, 58 How. 377. her V. O'Connor, 61 How. 103. ^ Common Pleas, 1881, Lockwood 2 Com. PI. 1884, Brady v. Kings- «. Fox, 61 How. 523; Com. PI. 1884, land, 67 How. 168. Brady v. Kingsland, 67 How. 168; 3 Code Civ. Proc. § 3307. N. Y. Super. Sp. T. 1881, Guivan- * Code Civ. Proc. § 3307. an v. Carroll, 4 Law Bui. 6. 6 Code Civ. Proc. § 3307. ' L. 1869, Ch. 569, as amended by 6 Sup'm. Ct. Sp. T. 1881, Maher L. 1874, Ch. 192. V. O'Connor, 61 How. 103. '" L. 1869, Ch. 569, as amended by L. 1874, Ch. 192. 166 LAW OF EEFEKEES. of Civ. Proc.^ Where the case is settled after advertise- ment and before sale, the referee in New York city is en- titled to but two dollars over disbursements.^ Where he made three sales, two of which fell through, he was allowed to charge fifty dollars where the sheriff could have charged that sum, besides fifty cents for entering the decree, and two dol- lars for advertising each sale.^ The referee may appeal from an order in an action whereby his fees are improperly taxed.* § 10. Keference as to Surplus Moneys. — Any one who has a lien on the mortgaged premises at the time of sale may, on filing with the clerk where the report of sale is filed, a no- tice stating that he is entitled to such surplus or some part thereof, and the nature and extent of his claim, have a ref- erence to ascertain and report the amount due to him, or any other person, which is a lien upon such surplus mon- eys, and to ascertain the priorities of the several liens thereon.^ The application must be founded on an affidavit showing what unsatisfied liens appear by the official searches in the case, whether any and what other unsatisfied liens are known by him to exist, must be on notice to the owner of the equity of redemption, and to any party who has appeared in the cause, or who shall have filed a notice of claim with the clerk.^ The order should be to ascertain and report the amount due to the moving party, or any other person, which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon, to the end that upon the coming in and confirmation of the report such further order as to distribution may be made as may be just.''' The referee must be selected by the 1 Sup'm. Ct. Sp. T. 1881, Maher b Rule 64. «. O'Connor, 61 How. 103 ; 1 Civ. « Rule 64 ; Sup'm. Ct. 1886, Kings- Proc. 158. land v. Chetwood, 39 Hun, 603. 2 Com. n. 1881, Lockwood c. ' Any person claiming the sur- Fox, 61 How. 522. plus moneys arising upon a mas- ^ Sup'm. Ct. 1878, Wallbridge v. ter's sale of mortgaged premises, James, 16 Hun, 8. or any part of such surplus moneys, ■• 1881, Hobart -o. Hobart, 86 N. may, either in his own name or by y. 636. his solicitor, give to the master, at REFERENCES IN ACTIONS FOR FORECLOSURE. 167 court.^ Any one having an interest in the land that is cut off by foreclosure should be made a party ,^ as should a general creditor applying therefor.^ The court may in its discretion, order a reference, or direct a bill to be filed to settle the conflicting claims to the surplus.* The reference is interlocutory, and the general rules for con- 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 solici- tor. And the master shall annex to and file with his report of the sale all notices so received by him ; or a notice of such claim upon the surplus moneys 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 filing with the register, assistant register or clerk where such surplus moneys are deposited, notice stating that he is entitled to such surplus moneys or such part thereof, and the nature and extent of his claim, may have an order of course referring it to a master 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 the priorities of several liens there- on ; to the end that, on the coming in and confirmation of the report of such reference, such farther order or decree may be made for the dis- tribution of such surplus moneys as may be just. Every party who ap- peared in the cause, and every per- son 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 de- posited, 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 notice of subsequent proceedings relative to such surplus. But if such claimant has not ap- peared or made his claim by a so- licitor of this court, the summons or notice may be served by putting the same into the post office directed to the claimant, at his place of resi- dence 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 reference before the master, may be charged with such costs as the other parties have been sub- jected to by reason of such claim ; and the parties 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 there- to, by any of the parties, shall be allowed on taxation, or paid out of such surplus. Chancery Rule 136. 1 Rule 64. 2 1871, Clarkson v. Skidmore, 46 N. Y. 297. 3 Sup'm Ct. 1881, German Sav. Bank «. Sharer, 25 Hun, 409. ^ Chancery, 1837, Sweet ■v. Jacobs, 6 Paige, 335. 168 LAW OF REFEEEES. ducting interlocutory references apply.^ The only claims tliat can be enforced in these proceedings are those that have ripened into liens ; mere equitable claims cannot be considered ; ^ but an attorneys lien on a judgment for his fees may be allowed.** The referee should ascertain by proper certificates, and other evidence, that all claimants and other proper parties have been summoned to attend before him on such reference, and his report should show that such certificate was produced.* Any lien upon the land is transferred to the surplus ; ^ a demand of dower out of the surplus, without specifying the amount, is suffi- cient ; ^ an encumbrancer, who has omitted to file notice of claim, may verify and file his claim before the referee and be heard thereon upon such terms as the referee may im- pose.''' A claim of the plaintiff under another encum- brance may be enforced, ® as may that of the heirs as against the administrator ; ^ all conflicting claims upon the fund may be litigated and disposed of,'" but in this pro- ceeding the regularity and good faith of proceedings in ac- tions separate and distinct from the one in which the ref- erence is had cannot be questioned.'^ Every question tending to show the equities of the claimants may be exam- ined,'^ including the validity of liens and encumbrances ; '^ a junior encumbrancer may attack the claims.'* Every 1 Ante, P. 110. Chamb. 1877, Mut. L. I. Co. v. 2 Sup'm. Ct. Sp. T. 1854, King v. Truohtnioht, 3 Abb. N. C. 135. West, 10 How. 333; Sup'm.Ct. 1857, ^ 1875, Dunning v. Ocean Nat. Husted B. Dakin, 17 Abb. 137. Bank, 61 N. Y. 497. 3 Sup'm. Ct. 1874, Atlantic Bank '" Sup'm. Ct. 1886, Kingsland «. «. Hiler 3 Hun 209. Chetwood, 39 Hun, 603 ; 1882, Fliess irtu' 10M TT 1., ^ «, nT^ c. Buckley, 90 N.Y. 286; 1879, Ber- 4 Chancery. 1841, Hulbert .. Mc ^ ^J^ ^^ ^ ^ ^^^ - Kay, 8 Paige, 651. ^, ^^ ^^^^ ^_ ^^ 6 Ct. App. 1868, Matthews ®. -^^^^ ^^ ^^^ ^g^^ Duryee, 4 Keyes, 525. 12' g^^,^ ^^ ^gg^^ ^^^^^j, ^ ^^^^^^ » Ct. App. 1868, Matthews v. ^0 Hun, 131. Duryee, 4 Keyes, 525. 13 Sup'm. Ct. 1866, Mut. L. I. Co. ' Chancery, 1841, Hulbert «. Mo- v. Brown, 47 Barb. 618; 1879, Ber- Kay, 8 Paige, 651. gen e. Cameron, 79 N. Y. 146. 8 Sup'm. Ct. Sp. T. 1853, Field v. " Sup'm. Ct. 1881, Rogers «.Ivers, Hawxhurst, 9 How, 75 ; Sup'm. Ct. 23 Hun, 434 ; Chancery, 1840, Miller EEFERENCES IN ACTIONS FOE FOBECLOSUEE. 169 question between the claimants, including fraud, may be settled.^ The good faith of one purchasing the equity of redemption may be questioned by one claiming title there- to.^ A judgment creditor may attack the validity of con- veyances.^ Prima facie the one alleged in the bill to own the equity is entitled to the surplus/* If the mortgagee is indebted to the mortgagor in a sum exceeding the amount of the mortgage, and there are no contesting creditors, the amount of such debts as are found due by a referee may be ordered paid to the mortgagee.^ Where there are sev- eral mortgages, the one first recorded is presumed to be the prior lien, but an agreement to the contrary may be shown on the reference as to surplus.^ A general lien is preferred to a subsequent specific one where it is shown the holder of the former has no other fund to which he can resort/ The referee may hear and determine any claims, where the facts set up would authorize the filing of a bill in equity to declare such claim to be a lien.^ § 11. Referee's Report as to Surplus Moneys. — The general form of the report is the same as in other interlocutory ref- erences^. It must show that the parties in interest were duly summoned,^" who appeared on the hearing," and must dispose of the whole surplus.''^ Prima facie the mortgagor, v. Case, Clarke Ch. 395 ; 1874, Hal- man F. I. Co. i). First M. E. Church, stead B. Halstead, 55 N. Y. 442. 29 Barb. 658; 29 How. 431. 1 Sup'm. Ct. 1880, Tator D.Adams, « Sup'm. Ct. 1864. Freeman «. 58 How. 355 ; 1879, Bergen -o. Cam- Schweder, 43 Barb. 618; 39 How.263. eron, 79 N. Y. 146 ; 1859, Livingston ' Sup'm. Ct. 1847,Meohanios Bank •B. Meldrum, 19 N. Y. 440; Chan- «, Richards, 1 Barb. 271 S. C; 3 eery, 1843, Beekman ». Gibbs, 8 Barb. 245. Paige, 511 ; 1873, Schafer v. Reilly, s n. y. Super. 1887, Crombie «. 50 N. Y. 61 ; 1874, Halstead v. Hal- Eosenstock, 19 Abb. N. C. 313. stead, 55 N. Y. 443. » Ante, P. 88. 2 Sup'm. Ct. Sp. T. 1854, King v. i" Chancery, 1841, Hulbert c. Mc- West, 10 How. 333 ;'Sup m. Ct. 1853, Kay, 8 Paige, 653 ; Chancery, 1844, Mead v. Gregg, 12 Barb. 653. Franklin v. Van Cott, 11 Paige 129; 3 Sup'm. Ct. 1881, Rogers B. Ivers, Sup'm. Ct. 1881, German Bank ». 23 Hun, 434. Sharer, 25 Hun, 409. < Chancery, 1844, Franklin v. Van •! Chancery, 1844, Franklin s.Van Cott, 11 Paige, 129. Cott, 11 Paige, 129. 6 Sup'm. Ct. Sp. T. 1859, Beek- '2 Chancery, 1844, Franklin «. Van Cott, 11 Paige, 129. 170 lAW OF EEFEREES. if he has sold, his grantee, or if he has died, his heirs or devisees are entitled, and in the absence of evidence to the contrary, the referee should so report.^ Where the mort- gagor died before foreclosure vras begun leaving no per- sonal property, the distribution may be among the general creditors, as it would be by the surrogate's court. Costs included in judgments against the administratrix not spe- cially obtained on motion cannot be allov^ed.^ A lessee for years with a covenant for quiet enjoyment is enti- tled to priority over his lessor.^ A secured mortgage con- tinues a lien and follows the surplus.* Where the referee finds that a clause reserving a life estate to the mortgagor was fraudulently introduced into the mortgage, he may reject such clause and report that as against judgment creditors the mortgage was a prior lien.^ A junior mortgagee is entitled to preference over a prior judgment creditor, where such mortgage was given for money to obtain title,^ so is an unrecorded mortgage over a subsequent judgment by confession.'' A recorded mortgage given to secure future endorsements is entitled to priority over subsequent judg- ments as to endorsements made before, as well as after the judgments.^ Where the proceeds of sale are insufficient to pay the bonds secured by the mortgage, one who has advanced money to pay coupons, holding them as security, cannot share in the proceeds if the holder of the bonds had no notice of the arrangement.^ A general lien is preferred to a subsequent specific one when there is no other fund applicable to the former.^" A judgment by confession by two partners is entitled to priority to the extent of two 1 Chancery, 1844, Franklin v. Van « Sup'm. Ct. Sp. T. 1847, Tall- Cott, 11 Paige, 129. man «. Farley, 1 Barb. 280. 2 Sup'm. Ct^ 1881, German Sav. ' Sup'm. Ct. 1859, Thomas v. Kel- Bank v. Sharer, 25 Hun, 409. sey, 30 Barb. 268. 8 1871, Clarkson v. Skidmore, 46 * 1881, Ackerman «. Hunsioker, N. Y.-297. 85N. Y. 43. 4 1883, Fleiss v. Buckley, 90 N. T. "1875, Union T. Co. v. M. & P. 386. J. Co. 63 N. Y. 311. 6 Sup'm. Ct. 1880, Tator J). Adams, i" Sup'm.Ct.l847, Mechanics Bank 30 Hun, 131. ■». Edwards, 1 Barb. 271; 3 Barb. 645. ' EEFEKENCES IN ACTIONS FOE FOEECLOSUEE. 171 thirds over subsequent judgments against three.'' A judg- ment creditor of a firm has priority over a junior judgment creditor of a partner where the real estate of the firm is sold under foreclosure.^ A creditor under a surrogate's decree is preferred to legatees.^ A mechanic's lien con- tinues against the surplus.* The report is not conclusive on the court. It may be confirmed, set aside, or sent back for further evidence or a further report.^ The moneys stand in the place of land for the purposes of distribu- tion.^ 1 Sup'm. Ct. 1859, Stevens v. Bank of Cent. N. Y. 31 Barb. 290. 8 Com. PI. Sp. T. 1887, N. Y. L. I. Co. V. Mayer, 19 Abb. N. C. 93. 3 Sup'm. Ct.Chamb. 1863, Clark's Case, 15 Abb. 337. 4 1878, Emigrant Bank v. Golds- man, 75 N. Y. 137. 5 Sup'm. Ct. 1874, M. L. I. Co. o. Salem, 3 Hun, 117. frl887,Delafield «. White, 19 Abb. N. C. 104. 172 LAW OF EEFEEEES. CHAPTER II. EEFEEENCES IN ACTIONS TO FOEECLOSE A MECHANIC'S LIEN. An action to foreclose a mechanic's lien is brought in the same manner, and the procedure is the same as in an action to foreclose a mortgage on real property.^ Such action may be referred by consent,^ and the court may compel a reference against the will of either or both par- ties where a long account is necessarily involyed.^ The proceedings to obtain the order, and the moving papers are the same as in other actions.* The order must be made by the court,^ and must be to hear and determine all the issues.^ The hearing is brought on in the same man- ner, the proceedings before the referee are the same, and the referee has the same powers and duties as in other references to hear and determine.'' The proceedings are strictissimi jurist and the plaintiff must aver and prove, and the referee must find all the facts requisite to the ac- quisition of a valid lien on the premises.^ The report must show, by reference or otherwise, the nature of the prop- erty or the interest of defendant therein to which the Ken attaches, the exact estate that is to be sold under the fore- closure thereof,^" the interest of the parties therein,^' that 1 L. 1885, Ch. 343, § 8. 1873, Keohler v. Stumme, 36 Super. 2 Code fiv. Proc. § 1011; P. 4 387; Com. PI. 1852, Seals v. Con- ante, gregation, 1 E. D. S. 654. 3 Code Civ. Proo. § 1013 ; Sup'm. 9 N. Y. Super. Sp. T. 1882, South- Ct. 1877, Tooker ■». Rinaldo, 11 Hui), ard «. Lavelle, 4 Law Bui. 30; N. T. 154. Super. 1863, Keohler «. Stumme, 36 4 AnU, Part I, Ch. IV. P. 23. Super. 337 ; L. 1885, Ch. 348, § 4. 5 Ante, Part I, Ch. V. Section 3, w Com. PI. Sp. T. 1857, Duffy «. P. 39. McManus, 3 E. D. S. 657. 8 Com. PI. Sp. T. 1875. Sheahy ». » Sup'm. Ct. 1874, JenlvS ». Par- Tomlinson, 1 Weeli. Dig. 34. sons, 3 Hun, 667; Com. PI. 1859, ' Ante, Parti. Ch. VI. P. 33 et seq. Bailey i). Johnson, 1 Daly 61 , Com. 8 Sup'm. Ct. 1851, Taylor d. Bald- PI. 1857, Sinclair v. Pitch, 3 E. D. S. win. 10 Barb. 636; N. Y. Super. 677. BEFEKENCES INACTIONS TO EOEECLOSE A MECHANIC'S LIEN. 173 there was a contract, express or implied, to furnish the work, labor, materials, or services, for which the lien is claimed ; ^ that such work, labor, or services have been rendered, or the materials furnished thereunder ; ^ that the contract has been performed to the extent of the amount claimed, and that the same is actually due thereunder," for such materials, or work, labor, and services upon the building or premises, under the contract.* I£ it be sought to hold the ownei? by reason of his assent to the contract, or to the expenditure for which the lien is claimed, such assent must be averred, proven, and found by the referee.^ It must further affirmatively appear that the notice of lien was verified before filing,^ that it was duly filed before the beginning of the action,'' and that a copy thereof was duly served upon the owner within ten days after the filing, in accordance with the statute.* The date of filing should appear.^ If the action was by an employee, or a sub-con- tractor, that the articles for which the lien is claimed were furnished in accordance with the contract between the owner and contractor,'" and that by the terms of the con- tract a payment has become due to the contractor.'" Since the proceeding for the foreclosure of a lien is an action,'^ the general provisions as to making and filing the report apply.^^ The fees of the referee are the same,'* and judg- ment is to be entered on the report without application to the court.'^ The court may appoint a referee to sell, and 1 L. 1885. Ch. 343, § 4. » Com. PI. Sp. T. 18.52, iloSorley 3 L. 1885, Ch: 34S, § 4. •». Hogan, 1 C. R. N. S. 285. 3 L. 1885, Ch. 342, § 4; Com. PI. w Com. PI. 1852, Doughty v. Dev- 1884, Leiegne «. Sohwarzler, 10 Daly, lin, 1 E. D. S. 635 ; Com. PI. 1855, 547; Com. PI. 1859, Bailey ». John- Quinn ii. Mayor, 3 E. D. S. 558; son, 1 Daly, 61 ; Com. PI. 1855 Com. PL 1855, Broderiok «. Poillon, Jaques v. Morris, 2 E. D. S. 639. 3 E. D. S. 554; Com. PI. 1854, Dixon 4 Com. PI. Sp. T. 1878, Watrous v. La Farge, 1 E. D. S. 722. V. Elmendorl, 55 How. 461. " Com. PI. 1884, Leiegne v. 6 1879, Burkett v. Harper, 79 N. Schwarzler, 10 Daly, 547 ; Com. PI. Y. 373. 1859, Bailey v. Johnson, 1 Daly, 61. 6 L. 1885,343, § 4; Com. PI. 1857, 12 l. 1885, Ch.' 343, § 8. Conklin v. Wood, 3 E. D. S. 663. is Ante, Part I, Ch. VIII. P. 54. ' L. 1885, Ch. 343, § 7 ; Com. PL " Ante, P. 62. 1859, Bailey v. Johnson, 1 Daly, 61. >5 com. PL Sp. T. 1879, Ward v. 8 L. 1885, Ch. 343, § 4. Kilpatriok, 1 Law. Bui. 31. 174 LAW OF EEFEKEES. report the deficiency as upon sale under foreclosure/ and his powers and duties are the same as in foreclosure cases,*^ where the owner admits that a certain amount, but not suf- ficient to satisfy all the liens, is due from him, the proceed- ings are similar to those on a reference as to surplus moneys in foreclosure.^ CHAPTEE III. EEEERENCES IN PEOCEEDINGS AGAINST SHIPS AND VESSELS. A referee may be appointed to hear and determine the issues in proceedings to enforce demands against ships and vessels ;* the powers and duties of such referee are the same as on the trial of a civil action,® and an appeal therefrom may be taken therefrom in the same manner.^ This statute does not apply to claims cognizable in a court of admiral- ty,'^ but the mere fact that the proceeding is in rem, does not determine whether the claim is cognizable in admiral- ty.^ The proceedings will lie for work, labor and services done and rendered, and materials furnished in building a vessel." The words. " ships and vessels " are used in their ordinary sense ; the statute has no application to small craft, such as row boats, sail boats, scows, &c.; ^° nor does it apply where the vessel is being built in another state, al- 1 County Court, Monroe Co. 1877, Hamill, 43 jST. T. 554 ; 1881 , Pouoher Gauhn v. Mills, 3 Abb. N. C. 114. v. Blanchard, 86 N. T. 256. 2 AnU, P. 157, et seq. 8 i87l, Brookman v. Hamill, 43 3Com. PI. 1873, Hubbell v. N. Y. 554 ; Vose d. Cockroft, 44 N. Sohleyer, 4 Daly, 363 ; ante, P. 166. Y. 415. 4 L. 1863, Ch. 482, § 23. ^ 1880, "Wilson v. Lawrence, 82 N. B L. 1863, Ch. 482, § 23; see P. 32, Y. 409 ; 1877, King e. Greenway, 71 ante. N. Y. 413. 6 L. 1862, Ch. 482, § 24. i» Sup'm. Ct. 1819, Birkbeok v. ' 1868, i?ir« Steamboat Josephine, Hoboken Boats, 17 Johns. 54; 39 N. Y. 10; 1871, Brookman «. Sup'm. Ct. 1830, Farmer's Delight v. Lawrence, 5 Wend. 664. BEFERENCES IN PKOCEEDINGS AGAINST SHIPS AND VESSELS. 175 though the debt was contracted in New York.^ A canal boat is within the act.^ That the work was done upon the personal credit of the owner, and time for payment given does not affect the right to the lien,^ nor, it seems, does consent to the departure of the vessel from port.* The justices of the N. Y. Superior court have jurisdiction to issue the warrant of attachment.® The remedy is cumula- tive,^ but gives no rights to the employees of one who has made repairs.'' The specifications of the lien must be specific and definite, otherwise the court obtains no juris- diction.* A debt is not, within the act, contracted for provisions and stores until they are actually delivered.' Since the proceedings are the same as in an action the order must be made by the court, and must be to hear and determine.^" The report will be similar to the report of a referee on the foreclosure of a mechanics' lien;'''' if under section 18 a referee is appointed to make distribution the proceedings will be similar to those on a reference as to surplus moneys in foreclosure.^^ 1 1875, Moores '». Lunt, 60 N. T. 6 ]sf. y. Super. 1866, Delany v. Y. 649, below 1 Hun, 650, 4 T. & C. Brett, 27 Super. 713 ; 1 Abb. JST. S. 154. 421. 2 Sup'm. Ct. 1875, Emmons v. « 1875, Scott v. Delahunt, 65 N. Wheeler, 5 T. & C. 617 ; 1877, King Y. 128. V. Greenway, 71 N. T. 413 ; Sup'm. '^ Sup'm. Ct. 1878, Fralick ». Ct. 1855, Nelson v. Yates, 37 Hun, Betts, 13 Hun, 632. 52. 8 Sup'm. Ct. 1885, Nelsonu; Yates, 3 1872, Happy v. Mosher, 48 N. 37 Hun, 53. Y. 313 ; 1874, Mott i>. Lansing, 57 » 1850, Veltman «. Thompson, 3 N. Y. 113. N. Y. 438. 4 1874, Mott V. Lansing, 57 N. Y. i« Ante, PP. 9, 39. 113. " Ante, P. 172. 12 AnU, P. 166. 176 LAW OF REFEREES. CHAPTER IV. REFERENCES IN ACTIONS FOR DOWER. Section 1. — Reference of issues in an action for dower. Sbotion 3. — Reference to admeasure dower. Section 3. — Report of referee to admeasure dower. Section 4. — Reference as to damages in dower. Section 5. — Other references in actions for dower. § 1. Reference of Issues in an Action for Dower. — An action for dower, like any other action, may be referred ; ' or in a proper case by order of tlie court, against the will of the parties ; ^ but the referee of the issues cannot be directed to ascertain and report whether the premises are so situ- ated that a distinct parcel cannot be admeasured and laid off for the plaintiff as tenant in dower without material in- jury to other parties.^ The appointment of the referee, and his powers and duties are the same as in other refer- ences,* and judgment may be entered in the same manner ; ^ although the usual practice is to enter judgment only by the direction of the court.^ § 2. Reference to Admeasure Dower. — An interlocutory judgment in an action for dower deciding that plaintiff •is entitled thereto, may designate a referee to admeasure dower in the lands described in the judgment.''' Before entering on his duties, such referee must take, subscribe and file with the clerk an oath that he will faithfully, honestly and impartially discharge the trust reposed in him.^ He may at any time be removed by the court, 1 Code Civ. Proo. §§ 1011, 1013. * Ante, Pp. 9, 39, 33, 35. 2 Code Civ. Proo. § 1013. ^ yinte, P. 73. 3 Sup'm. Ct. 1886, O'Dougherty ». 6 Ante, P. 74. Remington Paper Co., 42 Hun, ' Code Civ. Proc. § 1607. 193. « Code Civ. Proc. § 1608. EEFEBENCES IN ACTIONS FOE DOWEE. 177 and in case of his death, resignation, removal, neglect or refusal to serve, the court may from time to time ap- point another.* The referee must, if practicable, and in his opinion for the best interest of all the parties con- cerned, admeasure and lay off, as speedily as possible, as the dower of the plaintiff, a distinct parcel, constituting one-third part of the real property of which dower is to be admeasured, designating the part so laid off by posts, stones, or other permanent monuments.^ In making such admeasurement, he must take into consideration any per- manent improvements made upon the real property after the death of plaintiff's husband, or after the alienation there- of by him ; and if practicable, those improvements must be awarded with in 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 plaintiff, pro- portionate to the benefit which she will derive from so much of those improvements as is included in the part laid off to her.^ A surveyor, with the necessary assistants, may be employed to aid in the admeasurement.* The parties are entitled to notice of the proceedings, but where they had actual knowledge, confirmation of the report will not be refused on the sole ground that no formal notice was given.^ Where the heir, on request, refused to point out the premises to the commissioners, or to do anything in the matter, further notice was held unnecessary.^ Where the reference to admeasure was ordered after recovery by the widow in ejectment, notice to the attorneys is sufficient." Where the husband held a portion in severalty and another portion as tenant in common, the referee may set off one- third of that held in severalty by metes and bounds, to be held by the widow in severalty, and assign one-third of her husband's interest in the other parcels, to be held by her as tenant in common with the other owners.^ Where the 1 Code Civ. Proc. § 1608. ^ Sup'm. Ct. 1813, Matter of Wat- " Code Civ. Proc. § 1609. kins, 9 Johns, 345. 3 Code Civ. Proe. § 1609. ' Ct. App. 1863, Stewart v. Smith, * Code Civ. Proc. § 1609. 1 Keyes, 59. 5 Sup'm. Ct. 1873, Smith v. Smith, » Sup'm. Ct. 1873, Smith v. Smith. 6 Lans. 313. 6 Lans, 313. 178 LAW OF BEFEKEES. property is of sucli a nature that it cannot be equitably divided, it may be so assigned as to give the widow one- third of the rents, or an alternate occupation of the whole. ^ Where the premises consisted of a dwelling-house, and the referee assigned specified rooms therein, it was held the widow might object, but the tenant could not ;* and where the premises consisted of a dwelling-house and store, and the dower was assigned in such a waj' as to make the building practically useless, the referee's report may be set aside on application of the owner of the freehold.^ "Where there are several distinct parcels, the widow cannot insist upon a separate portion of each where the interests of others would be seriously affected. The whole dower may be assigned from one parcel.* Stakes and bounda- ries will control courses and distances. Property outside the boundaries fixed will be regarded as undivided.^ The title cannot be controverted before the referee to admeas- ure.^ Where the property was alienated during the life of the hsuband the dower should be computed upon the value at the time of such alienation ; subsequent improvements cannot be included.''' The better practice is to determine the question of value at the time of the trial, leaving the question of improvements to the referee.® If there were mines on! the property, unopened at the death of the hus- band, the widow can have dower only in other lands. If opened before his death, the referee must estimate the 1 Sup'm. Ct. 1823, Coates «. Y. 105; Sup'm. Ct. 1830, Hyde «. Cheever, 1 Cow. 460. Hyde, 4 "Wend. 630. 2 Sup'm. Ct. 1842, White «. Story, ' Code Civ. Proc. § 1609 ; Sup'm. 2 Hill, 543 ; N. Y. Surr. 1856, Parks Ct. 1867, Marble v. Lewis, 53 Barb. V. Hardey, 4 Bradf. 15. 432 ; 36 How. 337 ; N. Y. Super. 3 Ct. App. 1864, Stewart v. Smith, 1866, Brown «. Brown, 37 Super. 1 Keyes, 59 ; below 39 Barb. 167. 688 ; Sup'm. Ct. 1823, Coates v. ^ Sup'm. Ct. 1886, Price v. Price, Cheever, 1 Cow. 460 ; Chancery; 41 Hun, 486. 1843, Bell v. Mayor, 10 Paige, 49, 5 Sup'm. Ct. 1875, Jones «. Car- Sup'm. Ct. 1880, Raynor v. Raynor, roll, 5 T. & C. 631. 21 H\m, 36. 6 Sup'm. Ct. 1843, Matter of Wat- » Sup'm. Ct. 1867, Marble v. Lew- kins, 9 Johns, 245 ; N. Y. Surr. is, 53 Barb. 432 ; 36 How. 337 ; 1856, Parks i). Hardey, 4 Bradt. 15 ; Sup'm. Ct. 1833, Gates v. Paddock, Ct. App. 1805, Wood 1). Seely, 33 N. 10 Wend. 538. EEFEEENCES IN ACTIONS FOE DOWEE. 179 value so far as opened before that time, and assign them by admeasuring one-third in value, or a reasonable part of the profits at short periods.^ A conveyance made by the husband to the wife during marriage does not diminish the dower ; " nor does a mortgage paid by a grantee, unless he claims under the mortgage.^ Surplus moneys on foreclo- sure are regarded as real estate, and the widow is to be en- dowed of one-third of such surplus, over and above princi- pal, interest and costs,* and is not chargeable with taxes or assessments unpaid before assignment of dower, if there was personal estate sufficient to pay them.^ Where the widow redeems from a mortgage, the admeasurement must be in accordance with the provisions of the statute (now section 1609 of the Code of Civil Procedure).^ Where the pro- ceedings are in the surrogate's court, a counter-claim against the widow for moneys due the estate from her can- not be interposed, unless she has consented to receive a gross sum in lieu of dower J Where a wife joined in a deed which was in fact a mortgage, and the grantee re-con- veyed to the husband, who gave a new mortgage in which th« wife did not join, the widow was held entitled to dower in the entire fee.** If it is not practicable, or if in the opinion of the referee it is not for the best interests of all the parties concerned to admeasure and lay off a distinct parcel, he must report that fact to the court ; ' but such report is not conclusive thereon.^" § 3. Report of Referee to Admeasure Dower. — The referee must make a full report of his proceedings, specifying therein the manner in which he has performed his trust, 1 Sup'm. Ct. 1823, Coates v. 178 ; Sup'm. Ct. 1870, Harrison v. Cheever, 1 Cow. 460. Peck, 56 Barb. 251. 2 Sup'm. Ct. 1830, Hyde v. Hyde, « Chancery, 1843, Bell v. Mayor, 4 Wend. 630. 10 Paige, 49. 3 Sup'm. Ct. 1882, Bartlett v. "• N. Y. Surr. 1877, Taylor v. Musliner, 28 Hun, 235. Bentley, 3 Redf. 34. i N. Y. Surr. 1877, Taylor v. 8 Sup'm. Ct. 1883, Taylor «. Post, Bentley, 3 Redf. 34. 30 Hun, 446. 6 N. Y. Surr. 1877, Taylor v. » Code Civ. Proc. § 1609, par. 3. Bentley, 3 Redf. 34 ; Chancery, i" Sup'm. Ct. 1886, Price i>. Price, 1838, Williams v. Cox, 3 Edw. Ch. 41 Hun, 486. 180 LAW OF EEFEEEES. with the items of his charges, and a particular description of the portion admeasured and laid off to the plaintiff, or if he reports that it is not practicable, or in his opinion it is not for the best interests of all the parties concerned to ad- measure and lay off a distinct parcel of the property of which dower is to be admeasured, he must state the reas- ons for that opinion, and all the facts relating 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.^ The general form of the report and the proceedings thereon are the same as in other in- terlocutory references.^ Upon application of any party to the action, and upon good cause shown, the court may set aside the report, and if necessary, may appoint a new ref- eree, who must proceed as prescribed." The fees and ex- penses of the referee, including the expense of a survey, where made, must be taxed under the direction of the court, and the amount thereof must be paid by the plain- tiff, and allowed to her upon the taxation of her costs;* The fees of a surveyor, if employed, are five dollars per day for each day actually and necessarily employed in survey- ing, laying out, marking or mapping land therein, and of his assistant two dollars per day.^ The fees of a commis- sioner to admeasure, five dollars for each day's actual and necessary service.^ The fees of a referee for a similar ser- vice are nowhere fixed, unless by the section fixing the fees of referees generally. § 4. Reference *as to Damages in Dower. — Where the widow recovers dower, in a case not specified in section 1601, she may also recover, in the same action, damages for with- holding, to be computed from the commencement of the action ; '' these damages include nothing for the use of per- manent improvements made after the property was aliened by the husband. In all other respects the computation I Code Civ. Proo. § 1610. ^ Code Civ. Proc. § 3299. ' Ante, P. 88. " Code Civ. Proc. § 3299. 3 Code Civ. Proo. § 1611. ' Code Civ. Proc. § 1600. * Code Civ. Proo. § 1612. KEFEKENCES IN ACTIONS FOB DOWEK. 181 must be made as prescribed in section 1600.^ A defendant is not occupying or claiming a right to occupy the premises, not liable for damages.*^ Where the widow recovers dower in real property aliened by the heir of the husband, she may recover, in a separate action against him, her damages for withholding her dower, from the time of the death of the husband to the time of alienation, not exceeding six years in all. The sum recovered from him must be deducted from what she would otherwise be entitled to recover against the grantee ; the amount she may recover against the grantee must be deducted from what she would other- wise be entitled to recover from the heir.^ The acceptance by the widow of an assignment of dower in satisfaction of her claim upon the property in question bars an action for dower, and may be pleaded by any defendant.* The stat- ute gives the right to damages, and furnishes the sole rule for computation ; ^ the profits are not recoverable until dower has been assigned.^ Where the property was sold during the life of the husband, she is entitled to one-third in value at the time of alienation ; '' she is entitled to the crops growing On the land assigned to her for dower.^ The heir may voluntarily assign dower, and for the purpose of computing damages such assignment is equivalent to judg- ment therefor.^ The damages are to be assessed upon the heirs and terre tenants according to the time of their en- joyment of the land.^" The widow takes free from any claim for taxes levied thereon prior to the death of her husband." Where there is an outstanding encumbrance to which the widow was a party, she can have dower only in the equity of redemption.'^ Where the widow consents 1 Code Civ. Proc. § 1601. torf, 1 T. & C. 58; 1853, Kaln «. 2 Code Civ. Proc. § 1603. -Fisher, 6 N. Y. 597. 3 Code Civ. Proc. § 1603. ' 1876, Kyle «. Kyle, 67 N. Y. 400. 4 Code Civ. Proc. § 1604. >" Chancery, 1820, Hazen v. Thur- 5 1876, Kyle o. Kyle, 67 N. Y. ber, 4 J. Ch. 604; Sup'm. Ct. 1861, 400. VanName'B.VanName, 33How. 247. "1876, Kyle «. Kyle, 67 N.Y. 400. "Sup'm. Ct. 1870, Harrison «. ' Sup'm. Ct. 1867, Marble «. Lewis, Peck, 56 Barb. 251. 53 Barb. 433 ; 36 How. 337. '^ chancery, 1828, Russell t. Aus- 8 Sup'm. Ct. 1873, Clark v. Bat- tin, 1 Paige. 192. 182 LAW OF REFEREES. to take a gross sum from surplus moneys in foreclosure slie is not chargeable with any of the costs, charges, or expenses of receiving or paying over said sum.' The mesne profits consist of the net rents after deducting all necessary re- pairs and taxes, or the net rental value, or the value of the use and occupation,^ and interest to the time of trial.^ The compensation is to be adjusted as upon contract and not upon the footing of a tort,* and at the rate actually re- ceived by the defendant while the moneys were in his hands.^ The form of the report of the referee as to dam- ages in dower is nowhere specifically prescribed. As a matter of precaution it may be well to follow the directions of section 1610 of the code of civil procedure. In all other respects the general form of the report on an interlocutory reference may be followed.^ § 5. Other References in Dower. — When plaintiff has filed her consent to accept a gross sum in lieu of dower, and any defendant has applied for an order granting leave to pay such sum, the court may, in its discretion, and upon such terms as justice requires, appoint a referee to ascer- tain the value of plaintiff's right of dower in the premises ; '' where the consent to accept a gross sum has been filed, and she is entitled to an interlocutory judgment in the ac- tion, a referee may be appointed to ascertain whether a distinct parcel of such property can be admeasured and laid off without material injury to the interests of the par- ties.^ If such distinct parcel cannot be admeasured and laid off, a referee may be appointed to sell the property ; ^ before such sale is ordered a reference must be ordered to ascertain whether any person not a party has a lien upon such property or any part thereof. The proceedings in such reference are the same as on a similar reference in iSup'm. Ct. Sp. T. 1872, Camp- •• 1859,Holmes».Davis,19N.Y.488. bell V. Erving, 43 How. 258. « Sup'm. Ct. 1886, Wlthaus v. 2 1885, Wallace ii. Berdell, 101 N. Schack, 38 Hun, 560. y. 13 ; 3 N. E. Rep. 769 ; 3 East. 6 AnU, P. 88. Rep. 337. ' Code Civ. Proc. § 1618. 3 Code Civ. Proc. § 1600; 1867, « Code Civ. Proc. § 1619. Vandervoort v. Gould, 36 N. Y. 639. » Code Civ. Proc. § 1619. EEFEKENCES IN ACTIONS FOE DOWBB. 183 partition.^ The powers and duties of the referee to sell are the same as those of a referee in foreclosure.^ Imme- diately after completing the sale and executing the proper conveyance to the purchaser, the officer 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 par- cel sold to him ; the sums which the officer has paid out of the proceeds of the sale pursuant to the interlocutory judgment ; the purpose 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.^ 1 Code Civ. Proc. § 1631. 3 Code Ciy. Proc. § 1633. 2 Ante, P. 164. 184 LAW OF EEFEREES. CHAPTEE V. EEFEEENCES IN ACTIONS FOE PAETITION. Sbotion 1. — Reference of issues in an action for partition. Section 3. — Reference to sell in partition. § 1. Reference of Issues in an Action for Partition. — All the issues in an action for partition may be sent to a referee to hear and determine by consent of the parties.^ Such con- sent will be presumed, though not shown, where the refer- ence is allowed to proceed to judgment without objection ;^ but if objection is made, the issues must be tried by a jury.^ If a reference to hear and determine be ordered, the pro- ceedings are the same as in other actions referred by con- sent, and judgment is perfected in the same manner ; * but the usual practice where a reference is had in this and simi- lar actions is to enter judgniient only upon confirmation of the report.^ Where defendant has made default in appear- ing or pleading, or where an infant is a party, a reference may be had to ascertain the rights, shares, and interests of the several parties in the property before an interlocutory judgment is rendered.® The application must be on notice to those who have appeared, and an affidavit showing that the interests as stated in the complaint are not denied or controverted, and if any of the defendants are infants, or absentees, or unknown to the plaintiff, that fact must also 1 Code Civ. Proo. §§ 1011, 1013. ^ i875, Macy «. Nelson, 63 N. Y. 2 1875, Macy i>. Nelson, 63 N. Y. 638 ; N. Y. Super. Sp. T. 1879, 638. Hathaway v. Russell, 45 Super. s Code Civ. Proc. § 1544; Sup'm. 538; again 46 Super. 103; 1874, Ct. Sp. T. 1881, Casserly v. Wal- Austin v. Ahearne, 61 N. Y. 6. lace, 61 How. 240. , ^^ (,. p 4 Code Civ. Proo. § 1338 : P. 73, ^ ante. BEPEEENCES IN ACTIONS FOE PAETITION. 185 be stated.^ Where the answer is a nullity, a reference as on default may be ordered.^ The referee must be selected by the court, must be directed to take proof of plaintiff's title and interest in the premises, and of the several matters set forth in the complaint, 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.^ The referee may also be directed to inquire and report whether the whole premises, or any separate lot or parcel thereof, are so circumstanced that an actual partition there- of cannot be made, and if he finds that a sale of the whole premises, or any separate lot or parcel, will be necessary, that he specify the same in his report, together with the reasons that made a sale necessary ; and if a sale be found necessary, that he also ascertain and report whether any individual not a party has a specific lien by mortgage, de- vice or otherwise upon the undivided share or interest of any party.* The clause as to advertising for liens may, in 1 Rule 66 ; Code Civ. Proc. § 1545. 2 Sup'm. Ct. 1881, Nolan v. Skelly, 62 How. 102. 3 Code Civ. Proc. § 1545; Rule 66. * Code Civ. Proc. § 1561. "Where the whole premises of which partition is sought, are so cir- cumstanced that a partition thereof cannot be made without great pre- judice to the owners, due regard be- ing 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 tenants in common may be entitled is so circumstanced, the complainants, upon stating the fact in the affidavit which is to be filed for the purpose of obtaining an order of reference under the next preceding rule, may have a further provision inserted in such order of reference, directing the master to enquire and report whether the whole premises, or any lot or separate parcel thereof, are so circumstanced that an actual par- tition 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 report, together with the reasons which render a sale ne- cessary ; and in such a case that he also ascertain and report whether any creditor not a party to the suit has a specific lien, by mortgage, de- vise or otherwise, upon the undivid- ed share or interest of any of the parties in that portion of the prem- ises 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 fur- 186 LAW OF EEFEREES. the discretion of the court, be dispensed with where a party produces a search, certified by the clerk and register, as the case requires, of the county where the property is situated, and it appears therefrom and the affidavits, if any produced therewith, that there is no such lien.* Where the reference is to ascertain and report, the pro- ceedings before the referee are conducted in the same man- ner, and the powers and duties of the referee are the same as on other interlocutory references.* The plaintiff should produce an abstract of title as tenant in common back to a common source.^ It must be such a one as would entitle him to recover in ejectment.* Where the referee is direct- ed to ascertain liens, he must advertise as prescribed by statute.^ The validity of the liens presented may be con- tested, although there' is no issue in the pleadings in re- spect thereto.^ An agreement that a tenant shall be paid for buildings erected by him on the premises may be treated as an equitable charge.''' So may a claim for necessary improvements that have greatly increased the value of the ther enquire and report whether the main as an incumbrance thereon in undivided share or interest ot any the hands of the purchaser ; to the of the parties in premises is subject end that such directions may be to any general lien or encumbrance, given in relation to the same, in the by judgment or decree ; and that he decree for the sale of the premises, ascertain and report the amount due as shall be most beneficial to all the to any party to the suit who has parties interested in the proceeds either a general or a specific lien on thereof on such sale." Chancery the premises to be sold, or any part Rule 178. thereof, and the amount due to any i Code Civ. Proc, § 1561. creditor, not a party, who has a gen- ^ Ante, P. 82. eral lien on any undivided share or ^ Chancery, 1837, Hamilton v. interest therein, by judgment or de- Morris, 7 Paige, 39. cree, and who shall appear and es- * Chancery, 1830, Larkln v. Mann, tablish his claim on such reference. 3 Paige, 27. The master, it requested by the par- ^ Code Civ. § 1562. ties who appear before him on such ' 1885, Barnard v. Onderdonk, 98 reference, shall also ascertain and N. Y. 158; 1874, Halsted v. Hal- report the amount due to any credit- sted, 55 N. Y. 442 ; Chancery, 1834. or, not a party to the suit, which is Dunham v. Minard, 4 Paige, 441 ; either a specific or general lien or Sup'm. Ct. 1887, Leinen v. Elten, 48 incumbrance upon all the shares or Hun, 349. interests of the parties in the prem- ' Sup'm. Ct. Sp. T. 1877, Walter iaes to be sold, and which would re- ■». Walter, 3 Abb. N. C. 13. EEPEEENCES IN ACTIONS FOE PARTITION. 187 property.^ Dower must be paid only from the proceeds of the share upon which it was a lien.^ "Where the referee does not advertise for liens, the parties should produce, at their own cost, searches for at least twenty years.^ The report of the referee to ascertain and report shoiild contain only findings of fact, not conclusions of law ; * should con- tain an abstract of the conveyances of each and all the un- divided shares or interests of the several parties in the premises from the time when they were united in a com- mon source of title.^ It is not essential that searches be annexed, if the referee reports that he has caused search to be made, and states what encumbrances there are.^ The referee is bound by the pleadings, and cannot find a title different from that stated and admitted therein^ It should also set forth facts showing whether or not actual partition is practicable.^ The report must be filed, notice given, and exceptions thereto filed within eight days to secure a right to be heard on appeal.^ The general form of the re- port is the same as on other interlocutory references.^" It is not conclusive; the court may accept or reject the find- ings as it deems just.^' § 2. Reference to Sell in Partition. — The final judgment in partition may order the sale to be made by a referee.^^ The manner of advertising and conducting the sale is the same as in an action for the foreclosure of mortgages.^^ The terms of the judgment must be strictly complied with,''* un- 1 1886, Ford v. Knapp, 103 N. T. » Sup'm. Ct. Chamb. 1877, Wal- 135. ter v. Walter, 3 Abb. N. C. 13. 2 1886, Ford v. Knapp, 103 N. Y. » Rule 30 ; 1887, Piatt v. Piatt, 135. 105 N. Y. 488. 3 Code Civ. Proo. § 1561 ; Sup'm. i" Rule 80. Ct. Sp. T. 1853, Hall ®. Patridge, 10 » 1874, Austin v. Ahearne, 61 N. How. 188. Y. 6; 1873, Moore ». Met. Bank, 55 * 1874, Austin •». Ahearne, 61 N. N. Y. 41 ; Sup'm. Ct. 1879, Thurber Y. 6. V. Chambers, 4 Hun, 721. 6 Chancery, 1837, Hamilton «. 12 Code Civ. Proo. § 1560. Morris, 7 Paige, 39. w j_nU, P. 157, et seg. 6 Ct. App. 1860, Noble v. Crom- " 1881, Weseman s.Wingrove, 85 well, 27 How. 289. N. Y. 353 ; 1873, Easton v. Piokers- ' Sup'm. Ct. 1884, McAlear «. gill, 55 N. Y. 310 ; Sup'm. Ct. 1880, Delany, 19 Week. Dig. 353. Wiggins v. Howard, 22 Hun, 136. 188 LAW OF EEFEREES. less waived by the parties affected by deviations therefrom.' The referee has no power to order a public street to be opened through the property ; ^ he must retain the balance of the purchase-money in his hands until the premises are cleared from liens,^ while he is not bound to search, nor is he responsible for the accuracy of liens claimed, he must take notice of all that are brought to his attention,* and he may be compelled by motion made in the action to pay the purchaser the amount required to satisfy a lien of which he had knowledge, not discharged before distributing the 2)urchase-money.^ When he has, with the sanction of the court, delivered a bond and mortgage instead of cash to the county treasurer to be invested as widow's dower, he can- not afterwards be compelled to receive it back and pay over money instead.^ Where three years have not elapsed since the death of testator, the former owner, the purchaser may have a reference to ascertain if there are any debts of the testator outstanding.'' The fees of a referee to sell in partition are the same as those of a sheriff, and he is enti- tled to the same disbursements ; where he is required to take security on a sale, or distribute, or ascertain and re- port on the distribution or application of any of the pro- ceeds of the sale, he is entitled to one half commissions on the amount so secured, distributed, or applied, allowed to an executor for receiving or paying out money ; but his compensation, including commissions, cannot exceed five hundred dollars.^ Where he has tried the issues he is en- titled to the per diem fees on such trial.^ Where the ref- eree pays the money into court to be distributed under its 1 Sup'm. Ct. 1880, "Wiggins «. How- e iggi. -Wiggins v. Howard, 83 N. ard, 32 Hun, 126.. T. 613. 2 Sup'm. Ct. 1871, Scott ®. Guern- ' Sup'm. Ct. Sp. T. 1857, Disbrow sey, 60 Barb. 163. ■». Folger, 5 Abb. 53. 3 1873, Easton «. Piokersgill, 55 "Code Civ. Proc. § 3297; 1881, N. Y. 310; 1881, Weseman d. Win- Hobart «. Hobart, 86 N. T. 636; grove, 85 N. Y. 353. Sup'm. Ct. Chamb. 1875, Kichards ^ 1878, Easton v. Piclcersgill, 55 «. Richards. 3 Abb. N. C. 93 ; affi'd, N. Y. 310; 1881, Weseman v. Win- 76 N. Y. 186; Sup'm. Ct. Chamb. grove, 85 N. Y. 353. 1877, Dabyu. Jacot, 2 Abb. N.C. 97. 5 1881, Weseman v. Wingrove, 85 " Sup'm. Ct. 1886, Kepler «. N. Y. 358. Merkle, 9 Civ. Proc. R. 384. BEFERENCES IN ACTIONS FOR PARTITION. 189 direction the referee is entitled to no commissions, but where a referee is appointed to distribute the money he is entitled to the commissions allowed.'' So far as L. 1869, ch. 569, § 1, as amended by L. 1874, eh. 192, relates to the fees of referees it is modified by the provisions of section 3297 of the code of civil procedure ; * the referee may ap- peal from an order made in the action fixing his fees at a sum less than he was entitled to receive ; ^ he may charge two dollars for drawing each deed, which sum the grantee must pay.* The commissions are to be computed only on the sums actually received and paid out ; it cannot be al- lowed on the amount of a mortgage subject to which the premises were sold.^ The fees are to be allowed only on completed sales ; but he can charge for advertising the first sale ten dollars, and for receiving and entering the decree fifty cents.® Where fees and disbursements for searches on a reference as to title are due from plaintiff's attorney to the referee to sell in the same suit, they may be allowed to the referee on the adjustment of his fees and commis- sions on the sale.'^ Immediately after making 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, and the price at which it was sold.® A referee to take proof, and report the amount defendants are entitled to receive of the proceeds of sale, may be or- dered to take proof of liens presented ; ^ but in ascertain- ing who hold liens he has no authority to accept from the general assignee of the ' owner a waiver of the assignors right thereto ; ^^ if he delays distribution he is chargeable with such interest as he could have obtained therefor.'^ 1 1886, Race v. Gilbert, 103 N. Y. ^ Sup'm. Ct. 1878, Walbridge v. 398. James, 16 Huu, 8. " Sup'm. Ct. Sp. T. 1881, Maher v. ' Sup'm. Ct. Chamb. 1877, Daby O'Connor, 61 How. 103. i>. Jaoot, 3 Abb. N. C. 97. 3 1881, Hobart v. Hobart, 86 N. » Code Civ. Proo. § 1576. Y. 636 ; 1886, Race v, Gilbert, 103 " Sup'm. Ct. 1886, Piatt v. Piatt, N. Y. 298. 43 Hun, 593. * 1886, Race v. Gilbert, 103 N. Y. i" N. Y. Super. 1864, Ballard v. 298. Burrows, 25 Super. 306. 5 Sup'm. Ct. Sp. T, 1880, Strauss " Sup'm. Ct. 1886, Kepler ». Mer- V. Hillman, 58 How. 377. kle, 9 Civ. Proc. R. 384. 190 LAW OF REFEEEES. CHAPTEE VI. EEFEEENCES IN MATEIMONIAL ACTIONS. Section 1. — Keferenoes of issues for divorce for adultery. Sbotion 3. — Proceedings to judgment. Seotion 3. — Entering judgment. Section 4. — References in default in action for divorce for adultery. Section 5. — References as to alimony and counsel fees before decree. Section 6. — References as to alimony after decree. Section 7. — References in action for separation. Section 8. — References in matrimonial actions other than for divorce or separation. § 1. Keferences of Issues in Actions for Divorce for Adultery. — A reference of the issues in actions for divorce for adultery can be ordered only by consent of the parties.'' The court has no power to refer against their will,* nor can it make such consent a condition of granting a favor.^ The stipu- lation waiving a jury trial should be in writing,* should be signed by the parties or their attorneys,^ and filed with the clerk.^ It should not name the referee ; the court alone has power to select him, and may name one to whom all the parties object.''' An order referring the cause to a ref- eree named by the parties has been held to be voidable, not void.^ A consent in open court has been held equiva- lent to a written consent,^ and a stipulation signed but not 1 Code Civ. Proc. § 1012. Ct. Sp. T. 1856, Diddell v. Diddell, 2 Sup'm. Ct. Sp. T. 1879, McCrea 3 Abb. 167. 1). McCrea, 58 How. 220 ; N. Y. Su- 6 Code Civ. Proc. § 1011. per. Sp. T 1877, Batzel v. Batzel, " Code Civ. Proc. § 1011. 42 Super. 561 ; 54 How. 139 ; Sup'm. ' Code Civ. Proc. § 1012, Rule 78. Ct. 1879, Morrell ». Morrell, 17 Hun, 8 Sup'm. Ct. 1878, Fullmer v. FuU- 324; Sup'm. Ct. 1874, Dietzs. Dietz, mer, 6 Week. Dig. 22. 4 T.& C. 565. » Sup'm. Ct. Sp. T. 1868, Water- 8 Sup'm. Ct. 1863, Cordier v. Cor- man v. Waterman, 37 How. 36; dier, 36 How. 187. Sup'm Ct. Sp. T. 1850, Anonymous, * Code Civ. Proc. § 1011 ; Sup'm. 5 How. 306. KEFERENCES IN MATEIMONIAL ACTIONS. 191 filed, may, after the referee has made his report, be filed and an order of reference entered now for then.' Where the action is for divorce for adultery the moving papers must contain the affidavit required by rule 18 as to the ser- vice of the summons and complaint ; notice of appearance and retainer are not sufficient.^ Where the action is to dissolve the marriage on the ground that defendant has a former wife living an affidavit as to connivance, cohabita- tion, etc., is not necessary on motion for reference on de- fault.^ The qualifications of the referee are the same as in other causes,* and the order is entered in the same man- ner.^ The order must be to hear and determine, or to hear and decide." A reference to take proof and report cannot be made even by consent,'' where by the order in the first instance a referee was appointed to take evidence and report, and on the coming in of a supplemental answer the referee was by consent directed to hear and determine, it was held on appeal that the last order must stand. ^ The referee must be sworn. The hearing is brought on in the same manner, and the general powers and duties of the referee are the same as on the trial of issues in an action at law. Husband and wife may testify for but not against each other,^ except to disprove the adultery.'" The refer- ee must try all the issues presented by the pleadings," in- cluding the adultery of plaintiff when alleged,'^ the legiti- macy of the children of the marriage,'^ the residence of the 1 Sup'm. Ct. Sp. T. 1856, Diddell Sp.T.1871,Merr01t). Merrill, 11 Abb. V. Diddell, 3 Abb. 167. N. 8. 74 ; N. Y. Super. Sp. T. 1866, ^ Rule 73. Lincoln v. Lincoln, 39 Super. 525. 3 Chancery, 1831, Borradaile «. ' N. Y. Super. Sp. T. Harpers. Borradaile, 1 Edw. Ch. 40. Harper, 5 Week. Dig. 460. * Ante, P. 6. » Com. PI. 1886, Bliss v. Bliss, 1 s Ante, P. 9. N. Y. St. Rep. 281. « Sup'm. Ct. Sp. T. 1868, Water- ^ Sup'm. Ct. 1886, Bailey v. Bai- man v. Waterman, 37 How. 86 ; N. ley, 41 Hun, 434. Y. Super. 1877, Sullivan v. Sullivan, i" Code Civ. Proc. § 831. 41 Super. 519; Harper v. Harper, n Sup'm. Ct. 1871, Price n. Price, 5 Week. Dig- 460; N. Y. Super. 9 Abb. N. fe. 391; Sup'm. Ct. 1861, 1877, Harding v. Harding, 43 Super. Linden v. Linden, 36 Barb. 61. 27; Sup'm. Ct. 1883. McCleary v. 12 Rule 75. McCleary, 30 Hun, 154 ; N. Y. Super. is Rule 76. 192 LAW OF EEFEKEES. parties and when and wliere the marriage was contracted,' whether five years have elapsed since the discovery of the alleged adultery, and whether the same was committed without the consent, connivance, privity, or procurement of the plaintiff.^ As to these facts the plaintiff must be ex- amined.^ It has been held that the allegation of these par- ticulars in a verified complaint was sufficient to throw the burden of proof to the contrary on defendant.* The power of the referee is limited by the order; he has no authority to hear and determine unless it is expressly given.^ § 2. Proceedings to Judgment. — The report must state findings of facts and conclusions of law separately ; ^ must show that the parties were present in person or by coun- sel, or had notice of the proceedings.''' Judgment can- not be ordered by consent ; ^ or on default, or failure to appear at the hearing ; ^ or on admissions of the parties ; ^^ unless such confessions or admissions are made under cir- cumstances which entirely preclude suspicions of collu- sion." The provisions of the statute must be strictly fol- 1 Code Civ. Proo. § § 1756, Super. 1883, Glick v. GUck, 5 Law 1757. Bui. 62; Sup'm. Ct. 1880, Schroeter 2 Code Civ. Proo. § 1758 ; Rule «• Schroeter, 23 Hun, 230 ; Sup'm. 73 ; Sup'm. Ct. 1863, Myers ». Myers, Ct. 1883, McCleary ®. McCleary, 30 41 Barb. 114; Sup'm. Ct. Sp. T. Hun, 154; N. Y. Super. Sp. T. 1877, 1886, Zadok «. Zadok, Daily Reg. Sullivan v. Sullivan, 41 Super. 519 ; July 14, 1886. 52 How. 453. s Rule 73 ; Sup'm. Ct. Sp. T. '' N. Y. Super. 1877, Sullivan v. 1886, Zadok v. Zadok, Daily Reg. Sullivan, 41 Super. 519; 52 How. July 14, 1886. 453. * Sup'm. Ct. 1863, Myers ». My- ' Code Civ. Proc. §§ 1012, 1753 ; era, 41 Barb. 114 ; Com. PI. Sp. T. Rule 73 ; Chancery, 1815, William- 1881, Faracei). Faraoe, 61 How. 61; son B.Williamson, 1 J. Ch. 488; see, also, Hennessey «. Hennessey, Rule 77. 58 How. 304. 9 Rule 77. 5 N. Y. Super. 1871, Merrill «. i« Chancery, 1848, Montgomery v. Merrill, 11 Abb. N. S. 74; Sup'm. Montgomery, 3 Barb. Ch. 132. Ct. 1877, Sullivan v. Sullivan, 41 n Sup'm. Ct. 1861; Lyon v. Lyon, Super. 519. 62 Barb. 168. "Code Civ. Proc. § 1022; N. Y. BEFEEENCES IN MATEIMONIAL ACTIONS. 193 lowed ; ^ notliing can be taken by intendment.^ The ref- eree must find on all tbe material issues made by the plead- ings.* Denial and condonation are separate issues.* It must appear whether or not five years have elapsed since the discovery of the alleged adultery, and whether or not the same was committed without the consent, connivance, privity, or procurement of plaintifl' ; ^ and as to these facts plaintiff must be examined.^ The parties are competent to prove the marriage ; '' to give evidence in favor of, but not against each other,^ except to disprove the allegation of adultery,^ and to prove that no action for divorce had ever before been begun, and decree entered.'" The testi- mony of the witnesses must be signed by them," and certi- fied with other proceedings to the court with the report.'^ Direct proof of adultery is not necessary ; it may be proved by circumstances that lead to it by fair inference ; '* but such circumstances must lead to it as a necessary conclu- sion ; appearances equally capable of two interpretations are insufficient." Full and sufficient opportunity are insuffi- cient without proof of acts of familiarity and lascivious con- duct ; '^ evidence of familiarity with the alleged paramour 1 N. Y. Super. 1877, Sullivan v. » Sup'm. Ct. 1886, Bailey v. Bailey, SulMvan, 41 Super. 519 ; 53 How. 41 Hun, 424. 453 ; N. Y. Super. 1877, Harding ». ^ Code Civ. Proc, § 831. Harding, 43 Super. 27 ; Sup'm. Ct. i" Sup'm. Ct. Sp. T. 1883, Hall -d. Sp. T. 1873; Blott «. Rider, 47 How. Hall, 5 Law Bui. 91. 90/; Sup'm. Ct. 1883, McCleary v. " Rules 30, 77. McCleary, 30 Hun, 154. ^ Rule 30 ; N. Y. Super. 1877, 2 Sup'm. Ct. 1861, Linden i). Lin- Sullivan «. Sullivan, 41 Super. 519; den, 36 Barb. 61. 52 How. 453; Sup'm. Ct. Sp. T. 3 Sup'm. Ct. 1871, Price v. Price, 1873, Blott v. Rider, 47 How. 90, 9 Abb. N. S. 291; Code Civ. Proc. i^ chancery, 1831, MurdockiJ.Mur. § 1221; Sup'm. Ct. 1861, Linden v. dock, 1 Edw. Ch. 14; N. Y. Super. Linden, 36 Barb. 61, Sp. T. 1862, Anonymous, 17 Abb. * Sup'm. Ct. Sp. T. 1847, Morrell 48; 1877, Pollock v. Pollock, 71 N. V. Morrell, 1 Barb. 318 ; see same Y. 137. case 3 Barb. 236. " 1877. Pollock v. Pollock, 71 N. 6 Rule 73 ; Sup'm. Ct. 1863, My- Y. 137 ; 1880, Conger v. Conger, 82 era «. Myers, 41 Barb. 114 ; Sup'm. N. Y. 603. Ct. Sp. T. 1886, Zadok v. Zadok, ^ 1877, Pollock v. Pollock, 71 N. Daily Reg. July 14, 1886. Y. 137 ; 1880, Conger «. Conger, 82 6 Rule 73. N. Y. 603 ; Com. PI. Sp. T. 1882, ' Code Civ. Proc. § 831. Donelly v. Donelly, 63 How. 481. 194 LAW OF EEFEEEES. prior to the date set forth is admissible.^ The evidence to establish the adultery of plaintiff must be as conclusive as that against a defendant ; ^ but the rule in criminal cases, that the proof must satisfy the mind beyond a reasonable doubt, does not apply to divorce cases.^ Where recrimi- natory charges are made, a finding " guilty as charged in the answer " is insufficient ; * but the uncorroborated testi- mony of loose women is insufficient to establish guilt.^ The report must show there was no collusion between the parties.* The referee is not bound to deliver or file his report until his fees are paid (see ante, p. 62). If the hus- band will not take up a report in his wife's favor, she may do so, and have the amount inserted in her alimony ; '' or he may be ordered to pay the fees.^ § 3. Entering Judgment. — The report and proceedings must be certified to the court, and judgment must be ren- dered by the court.^ A judgment entered ex parte on the report of the referee will be set aside.^" Exceptions to the report must be filed and served within eight days after no- tice of filing,^-' otherwise the report will become absolute, though defective on its face, but leave may be given to file them now for then.^^ After exceptions are filed and served, the cause may be brought to a hearing at any special term thereafter on notice by either party.^^ Except in the city of New York, the motion for judgment must be made at a 1 N. Y. Super. Sp. T.1877. Anony- ' Sup'm. Ct. Chamb. 1875. Hea^h- mous, 3 Abb, N. C. 161 ; Sup'm. Ct. erton v. Heatherton, 1 Week. Dig. Cir. 1845, Lookjer o. Lockyer, 1 37. Edm. 107. 8 1872, Sohloemer 3. Schloemer, 2 1877, Pollock %. Pollock, 71 N. 49 N. Y. 83. Y. 137. 9 Code Civ Proc. § 1339. 3 Sup'm. Ct. 1883, Allen ^. Allen, ,„ g ^^ g ^ ^^^^^ ^_ 18 Week. Dig. 184. ^ ^^ ^^^ / * 1877, Pollock n. Pollock, 71 N. Y ^grj, " Rules 30, 77. 5 Com. Pi. 1874, Piatt «. Piatt; 5 '^ Sup'm. Ct. Sp. T. 1884, Gade «. Daly, 395 ; Chancery, 1844, Turney G^de, 14 Abb. N. C. 510 ; Sup'm. ■u. Turney, 4 Edw. 566 ; Chancery, Ct. 1874, Catlin ®. Catlin, 3 Hun, 1839, Banta v. Banta, 3 Edw. 395. 378. 6 Chancery, 1841, Hanks «, Hanks, ^ Rule 30. 3 Edw. Ch. 469. KEFERENCES IN MATEIMONIAL ACTIONS. 195 special term.^ The only authority of the courts to grant a divorce is derived from the statute, and this must be strictly followed.^ The action is sometimes said to be triangular, the third party being the public, whose interest is para- mount, and must be carefully guarded.^ The special term cannot review the evidence and give such judgment as it thinks proper. If for any reason the proceedings do not warrant the entry of judgment, the motion to coniirm the report must be denied,* or the case may be sent back for further proof.^ A report that does not contain findings on all the material facts cannot be confirmed ; ^ but an al- legation in a verified complaint that the adultery was com- mitted without the consent, connivance, privity, or procure- ment of the plaintiff, that five years have not elapsed since the discovery thereof, and that since such discovery the parties have not cohabited will, unless denied, sustain a finding to such effect.''' If, for any reason, the proceedings before the referee do not warrant a decree, the motion for judgment will be denied ;^ or if the proceedings disclose a suspicion of collusion,^ or if the complaint alleges adultery iCode, § 770; Com. PI. 1880, 535; Sup'm. Ct. 1880, Schroeter ®. Robertson «. Robertson, 9 Daly, 44 ; Schroeter, 33 Hun, 330. Sup'm. Ct. Sp. T. 1883, Smith v. 5 Sup'm. Ct. Sp. T. 1886, Zadok Smith, 4 Law Bui. 57. v. Zadok, Daily Reg. July 14, 1886 ; 2 Chancery, 1885, Burtis «. Burtis, N. Y. Super. 1877, Harding v. Har- Hopk. 557 ; Chancery, 1838, Palmer ding, 43 Super. 37. v. Palmer, 1 Paige, 276 ; Chancery, 6 Sup'm. Ct. Sp. T. 1853, Arbor- 1831, Perry u. Perry, 3 Paige, 501 ; gast ». Arborgast, 8 How. 297 ; Sup'm. Ct. 1866, Peugnet ». Phelps, Sup'm. Ct. 1871, Price «. Price, 9 48 Barb. 566 ; Sup'm. Ct. 1862, Grif- Abb. N. S. 391; Sup'm. Ct. 1861, fin V. Griffin, 23 How. 183 ; but see Linden ». Linden, 36 Barb. 61 ; Wightman i>. Wightman, 4 J. Ch. Sup'm. Ct. 1863, Myers «. Myers, 41 343 ; Ferlat ». Gojou, Hopk. 478. Barb. 114. SN. Y. Super. 1877, Sullivan ®. ' Sup'm. Ct. Sp. T. 1881, Faraoe Sullivan, 41 Super. 519 ; N. Y. Su- v. Farace, 61 How. 61 ; Sup'm. Ct. per. 1877, Harding v. Harding, 43 Sp. T. 1853, Arborgast v. Arborgast, Super. 37: Sup'm. Ct. Sp. T. 1873, 8 How. 297; but see Zadok v. Za- Blott V. Rider, 47 How. 90 . Sup'm. dok. Daily Reg. July 14, 1886. Ct. 1861, Griffin v. Griffin, 23 How. 8 Sup'm. Ct. Sp. T. 1884, Blood- 183. good V. Bloodgood, Daily Reg. April * N. Y. Super. Sp. T. 1877, Anony- 30, 1884. mous, 3 Abb. N. C. 161 ; Sup'm Ct. ^ Chancery, 1815, Williamson v. 1878, Mej'er v. Meyer, 7 Week. Dig. Williamson, 1 J. Ch. 488. 196 LAW OF EEPEREES. with E. M. and none other, and the referee reports it was committed with one whose name is unknown/ or where the referee finds it was committed with numerous persons none of whom are named in the complaint," or where the only evidence is that of a physician, of facts learned during his professional employment ; but in such case the report may be sent back for further proofs.^ It will be confirmed where the defendant was sane when the adultery was com- mitted, but insane when the action was brought,* or when based on unsupported confessions of a party made under circumstances which entirely preclude suspicions of collu- sion.^ Testimony of plaintiff that no other action for di- vorce had ever been begun, and no decree entered against him will sustain a finding on those points ; ^ but a finding against a fact merely because a date is wrongly given, cannot be sustained^ The remedy of the defeated party is by ap- peal from the judgment entered on the report,^ or by mo- tion for further relief ; ^ or where the testimony is insuffi- cient by motion to send the case back to the referee for further evidence,^*^ as where the finding rests upon the unconfirmed evidence of the defendant,^^ or upon the uncorroborated evidence of a paramour,''^ or where there is reason to sus- pect condonation though not pleaded,^'' but not when the proceedings show there is an insurmountable obstacle to a 1 Chancery, 1840, Bokel «. Bokel, 1880, Schroeter v. Schroeter, 23 Hun, 3 Edw. Ch. 376. 230. 2 Chancery, 1840, Kane «. Kane, « JST. Y. Super. Sp. T. 1877, Anony- 3 Edw. Ch. 389. mous, 3 Abb. N. C. 161 ; Sup'm. Ct. 3 Chancery, 1841. Hanford v. Han- 1880, Schroeter 4). Schroeter, 23 Hun, ford, 3 Edw. Ch. 468. 230. * Sup'm. Ct. Sp, T. 1870, Rath- *° N. T. Super. Sp. T. 1864, Zor- bun V. Rathbun, 40 How. 328. kowskl «. Zorkowski, 26 Super. 613 : 6 Sup'm. Ct. 1861, Lyon .. Lyon, fj How. 37; N. Y. Super. Sp. T. 62 Ba b 168 ' Hamburger «. Hamburger, 46 How. 346. « Sup'm. Ct. Sp. T. 1883, Hall v. ,, g^^,^ ^^ gp ^ ^353^ ^^^^^^ Hall, 5 Law Bui. 91. ^^^^ ^ Arborgast, 8 How. 297 ; but ' N. Y. Super. 1864, Zorkowski gee Lyon v. Lyon, 62 Barb. 168. V. Zorkowski, 26 Super. 613 : 27 12 n. y. Super. 1866, Anonymous, How. 37. 28 Super. 611. 8 N. Y. Super. Sp. T. 1877, Anony- 13 Chancery, 1834, Smith v. Smith, mous, 3 Abb. N. C. 161 ; Sup'm. Ct. 4 Paige, 432. EEFEEENCES IN MATRIMONIAL ACTIONS. 197 decree.^ The adultery of tlie Imsband coimived at by the wife is not a bar to his action for her adultery not connived at or condoned by him.'^ Where exceptions are filed and defendants motion thereon was to set aside the report and for further relief, it is virtually for a new trial, and. the re- port may be set aside and a new trial granted.^ In such case the order of reference should be set aside and a new trial of the issues ordered.* Only a party, or the attorney or counsel of a party who has appeared, can have access to the pleadings or proceedings without special permission of the court.^ § 4. Reference on Default in Actions for Divorce for Adultery. — A judgment for divorce cannot be granted of course on default of defendant ; ^ as a matter of public policy strict proof of due service must be made.'' The moving papers are the same as on a motion for a reference of the issues in di- vorce eases.^ The application will be refused unless the name of the party with whom, or the place where the of- fense was committed appears in the complaint.^ The ref- eree must be selected and appointed by the court ; ^^ the or- der must be to hear and report ; " the referee must be sworn,'^ and should in writing appoint a time and place of hearing ; ^^ witnesses may be subpoened to appear and tes- tify and produce documents, books, or papers ; ^* refusal to appear, to testify, or to produce books or papers may be punished as for contempt ; ^^ for proceedings to punish for 1 Chancery, 1848, Montgomery v. * Rule 73. Montgomery, 3 Barb. Ch. 133. ^ N. Y. Super. 1853, Heyde v. 2 Sup'm. Ct. 1883, Bleok «. Bleck, Heyde, 7 Super. 693. 37 Hun, 396. i" Code Civ. Proc. §§ 1013; Rule 3N. Y. Super. 1877, Harding v. 73. Harding, 43 Super. 37. " N. Y. Super. Sp. T. 1877, Sulli- * N. Y. Super. 1877, Harding «. van v. Sullivan, 41 Super. 519 ; N. Harding, 43 Super. 37 ; compare Y. Super. Sp. T. 1871, Merrill «. Schroeter v. Schroeter, 33 Hun, 330. Merrill, 11 Abb. N. S. 74. 5 Rule 77. '2 Code Civ. Proc. § 1016 ti Rule 77. ^ Sup'm. Ct.Sp. T. 1853, Stephens 7 N. Y. Super. Sp. T. 1877, Sul- v. Strong, 8 How. 339. livan V. Sullivan, 41 Super. 519 ; " Code Civ. Proc. § 1017. Sup'm. Ct. Sp. T. 1873, Blott v. Ri- ^ Code Civ. Proc. § 8. der, 47 How. 90. 198 LAW OF EEFEBEES. contempt on interlocutory references, see page 87. All tlie material allegations of the complaint must be satisfactorily proven, and in addition thereto by the testimony of the plaintiff, or otherwise, that there is no judgment or decree in any court of the state of competent jurisdiction against him in favor of defendant for divorce for adultery.^ Tes- timony of plaintiff that no action for divorce had ever been begun, and no decree entered against him will sustain a finding on those points.^ Plaintiff must be examined on oath as to whether the alleged adultery was committed without the consent, connivance, privity, or procurement of plaintiff ; whether five years have elapsed since the discov- ery thereof ; whether there has been voluntary cohabitation since such discovery, and whether five years have elapsed since such discovery ; ^ although this has been held un- necessary where these allegations were made in a verified complaint.* Testimony as to the legitimacy of children can be taken only where the issue is distinctly raised by the complaint.^ Evidence not pertinent to the issues should be rejected.^ Testimony of witnesses must be signed by them and filed with the report.'' The report must con- tain findings as to all the material facts required to be proven,^ including the place of marriage or residence of the parties.^ If defective in these particulars it may be sent back for further proof.^" The opinion of the referee is not binding on the court.^'' Judgment can be rendered only by special direction of the court.^^ Defendant in de- i Code Civ. Proc. § 1757 ; N. Y. ' Rule 30. Super. Sp. T. 1864, Zorkowski «. » Rule 73. Zorkowski,26 Super. 613; 27 How.87. " Chancery, 1843, McNeil o. Mc- 2 Sup'm. Ct. Sp. T. 1883, Hall v. Neil, 3 Edw. Ch. 550. Hall, 3 Law Bui. 91. w Ciiancery, 1840, Dobbs v. Dobbs, 3 Rule 73 ; Sup'm. Ct. Sp. T. 3 Edw. Ch. 377 ; Chancery, 1839, 1886, Zadok ii. Zadok, Daily Reg. Dodge i). Dodge, 7 Paige, 589 ; Chan- July 14, 1886. eery, 1842, Pugsley v. Pugsley, 9 ■> Sup'm. Ct. Sp. T. 1853, Arbor- Paige, 589; Sup'm. Ct. Sp. T. 1886, gast n. Arborgast, 8 How. 297 ; Zadok v. Zadok, Daily Reg. July 14, Sup'm. Ct. Sp. T. 1881, Farace v. 1886. Farace, 61 How. 61. " Sup'm. Ct.l882, Moore®. Moore, 5 Rule 76. 14 Week. Dig. 255. 6 Sup'm. Ct. Sp. T. 1879, Ager v. ^ Rule 77. Ager, 1 Law Bui. 30. EEFEEENCES IN MATBIMONIAL ACTIONS. 199 fault may appear, and cross-examine witnesses in aid of the conscience of the court.^ § 0. Reference as to Alimony and Counsel Fees before Decree. — A reference to ascertain what will be a suitable sum to be allowed to the wife to enable her to carry on or de- fend the action, or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife, may be made from time to time during the pendency of the action,^ or in an action for divorce for adultery, or for a separation, in the judg- ment dissolving the marriage, or decreeing the separa- tion.3 Where the action is for dissolution of the marriage on the ground of impotence, fraud, force, or duress, or that one of the parties was insane, or an idiot, or lunatic, the reference to ascertain what is a suitable provision for the maintenance may be ordered in the judgment dissolving the marriage.* No allowance to the wife can be made after final judgment, unless provided for in the decree,^ but on the petition of the wife, to whom in an action for divorce the custody 0^ the children has been awarded, an allowance may be made for the care and education of her children, although no provision therefor was made in the decree.^ Where the wife is plaintiff the motion for temporary ali- mony may be made before the complaint is served,'^ but in such case the moving papers must set forth in substance all the facts necessary to make a good complaint in the ac- tion.^ Where the application is made before judgment it must appear by the moving papers that the wife has a good cause of action or defense ; that it is brought or defended in good faith, and that the applicant has not sufficient means of her own wherewith to carry on the suit, and to 1 Chancery, 1847, Perry v. Perry, brach, 96 N. Y. 456 ; 1878, Davis v. 2 Barb. Ch. 285 . Davis, 75 N. Y. 321. 2 Code Civ. Proc. § 1769. ^ 1884, Erlsenbrach v. Erkenbraoh, 3 Code Civ. Proc. §§ 1759, 1766. 96 N. Y. 456. ♦ Code Civ. Proc. § 1751. ' Sup'm. Ct. Sp. T. 1861, Whitney B 1874, Kamp v. Kamp, 59 N. Y. v. "Whitney, 33 How. 175. 313 ; 1884, Erlienbrach v. Erken- » Sup'm. Ct. Sp. T. 1861, Whitney i>. Whitney, 33 How. 175. 200 LAW OP REFEREES, support herself in the meantime.^ A mancieige prima facie valid must be shown,^ but a ceremonial marriage is not es- sential.^ Where the wife is defendant the answer should form part of the moving papers.* The application may be resisted by papers tending to show that the wife has no cause of action or defense,^ that she has sufficient means of her own,^ that the husband has already made provision for her/ that she is residing with her father who is sup- porting her under a contract with her husband,® or that her habits are such that she cannot be entrusted with money.^ The application must be made at special term on notice.^" The granting or refusing of a reference is dis- cretionary.''^ If a reference is directed the order should be to inquire and report the income of the husband's property, 1 Sup'm. Ct. Sp. T. 1861, Whitney V. Whitney, 22 How. 175 ; Chancery, 1841, Bartlett ». Bartlett, Clarke Ch. 460; Chancery, 1847, Jones v. Jones, 2 Barb. Ch. 146 ; Sup'm. Ct. Sp. T. 1847, HoUerman v. Holler- man, 1 Barb. 64 ; Sup'm. Ct. Sp. T. 1847, Bissells. Bissell, 1 Barb. 430; N. Y. Super. Sp. T. Solomon ». Sol- omon, 28 How, 218. 2 1872, Brinkley «. Brinkley, 50 N. Y. 184; 1877, Collins v. Collins, 71 N. Y. 269 ; again, 80 N. Y. 1 ; Com. PI. 1878, Kinzey v. Kinzey, 7 Daly, 460; Sup'm. C. Sp. T. 1874, Humphreys v. Humphreys, 49 How. 140. 3 1872, Brinkley ii. Brinkley, 50 N. Y. 184 ; 1880, Collins «. Collins, 80 N. Y. 1 ; Sup'm. Ct. Sp. T. 1867, Herforth «. Herforth, 2 Abb. N. S. 483. * Chancery, 1818, Lewis v. Lewis, 3 J. Ch. 519; Sup'm. Ct. Sp. T. 1872, Miller v. Miller, 43 How. 125 ; N. Y. Super. Sp. T. 1866, Strong 1). Strong, 1 Abb. N. S. 358. 6 Sup'm. Ct. Sp. T. 1872, Douglas V. DouRlas, 13 Abb. N.S.291; Sup'm. Ct Sp. T. 1864, Kook v. Kock, 43 Barb. 515 ; Sup'm. Ct. 1861, Griflan ■V. Griffin, 23 How. 189 ; Sup'm. Ct. Sp. T. 1857, Fowler b. Fowler, 4 Abb. 411 ; Sup'm. Ct. Sp, T. 1847, Hollerman v. Hollerman, 1 Barb. 65 ; Sup'm. Ct. 1868, Appleton v. War- ner, 51 Barb. 270 ; 188.0, Collins c. Collins, 80 N. Y. 1 ; Sup'm. Ct. 1883, Desbrough v. Desbrough, 29 Hun, 592 ; 1877, Collins ii. Collins, 71 N. Y. 269. 6 Sup'm. Ct. Sp. T. 1872, Douglas V. Douglas, 13 Abb. N. S. 291; Sup'm. Ct. Sp. T. 1848, Snyder v. Snyder, 3 Barb. 621 ; Chancery, 1847, Jones V. Jones, 2 Barb. Ch. 146; 1880, Collins v. Collins, 80 N. Y. 1. ' Chancery, 1844, Rose v. Rose, 11 Paige, 166; Chancery, 1831, Os- good V. Osgood, 2 Paige, 621 ; 1880, Collins V. Collins, 80 N. Y. 1. ^ Chancery, 1841, Bartlett v. Bart- lett, Clarke, 460 ; Sup'm. Ct. 1883, Desbrough v. Desbrough, 29 Hun, 513. " Chancery, 1835, Saunders v. Saunders, 2 Edw. Ch. 491. i» Rule 37. 11 Code Civ. Proc. § 1015. BEPEEENCES IN MATRIMONIAL ACTIONS. 201 what would be a reasonable sum to be allowed to tlie wife for counsel fees, support and maintenance during the pen- dency of the action, and that upon the coming in and con- firmation of the report the husband should pay the amount of such alimony and allowance at the times and in the manner specified in such report.^ Where the reference is made in the wife's action the order may direct the referee to inquire into the property of each party.^ The proceed- ings to the hearing are the same as in other interlocutory references. Evidence of the wife's misconduct is admissi- ble to aid in fixing the amount.^ The question of marriage should not be tried where that is the principal issue in the action.* The husband's ability to pay may be considered,^ and the position of the parties in society.^ Where the wife, defendant, denies the charges under oath, the hus- band's poverty is no reason for refusing her an allowance.''' An agreement between the parties as to the amount to be allowed is not conclusive ; a reference may be had to ascer- tain if the agreement is fair and equitable.^ Where coun- sel fees are asked for, proof of the amount and value of la- bor required in the cause may be given.® The income of the husband as well as his property is a proper subject of inquiry.'"' The testimony of the witnesses must be signed by them and annexed by the referee to his report.''^ The form of the report and the proceedings thereon are the same as in other references to inquire and report. The 1 Chancery, 1847, Gerard «. Ge- sCom. PI. 1869, Leslie v. Leslie, rard, 2 Barb. Ch. 73; Chancery, 6 Abb. N. S. 193; 10 Abb. N. S. 69; 1833, Lawrence «. Lawrence, 3 Paige, Chancery, 1833; Lawrence ■». Law- 367. rence, 3 Paige, 367. 2 1880, Collins v. Collins, 80 N. ' Chancery, 1838, Purcell «. Pur- Y. 1. cell, 3 Edw. Ch. 194; Sup'm. Ct. 3 Sup'm. Ct. Sp. T. 1859, Fowler Sp. T. 1849, Hallock v. Hallock, 4 V. Fowler, 4 Abb. 411. How. 160. * Sup'm. Ct. Sp. T. 1867, Herforth *> Chancery, 1835, Daggett v. Dag- V. Herforth, 3 Abb. N. S. 483. gett, 5 Paige, 509. = Chancery, 1833, Lawrence «. ^ 1875, De Llamosas v. De Lla- Lawrence, 3 Paige, 367; Com. PL mosas, 63 N. Y. 618. 1869, Leslie v. Leslie, 6 Abb. N. S. i» Sup'm. Ct. Chamb. 1883, Tearle 193 ; aff'd Ct. App. 10 Abb. N, S. v. Tearle, Daily Reg. July 35, 1883, 69. 11 Rule 30. 202 LAW OP BEFEBEES. referee is not bound to file his report until his fees are paid. Ante, p. 90. The court may order the husband to pay to the wife a fixed sum to enable her to take up a re- port in her favor.^ The report is not conclusive on the court ; it may be sent back for further evidence.^ § 6. Keference as to Alimony after Decree. — Where the wife is successful the court, in making the decree, may order a reference to ascertain what would be a reasonable sum to be allowed the wife to enable her to provide suitably for the education and maintenance of the children of the mar- riage and the support of the wife.^ The general term may order such reference when omitted in the court below.* The form of the order and the proceedings thereon are the same as on a reference for temporary alimony, p. 196, ante. The conduct of the parties may be shown to affect the amount ; ^ the situation of the wife, and the ability of the husband to pay,® and all other matters that would be proper on a reference as to temporary alimony, but the amount allowed should be larger ; '' marriage of the wife does not affect the decree.^ The report and the proceedings thereon are the same as in other references to inquire and report, pp. 88, 89. On proceedings by the wife to enforce payment of alimony awarded by the judgment, the husband cannot be compelled to pay the fees of the referee.' Where the judgment fixes alimony with leave to apply for a change in the amount from time to time as the circumstances of 1 1873, Schloemer «. Sohloemer, Bedell v. Bedell, 1 Johns. Ch. 49 N. T. 82. 604. 2 Sup'm. Ct. 1871. Gallmger v. " Sup'm. Ct. 1879, Park «. Park, Galllnger, 4 Lans. 475 ; 61 Barb. 31. 18 Hun, 466. 3 Code Civ. Proo. § 1759; Chan- ' Chancery, 1832, Lawreno9«.Law- cery, 1845, Coolidge v. Coolidge, 1 renee, 3 Paige, 267; Com. PI. 1869, Barb. Ch. 77 ; 1863, Forrest v. For- Leslie v. Leslie, 6 Abb. N. S. 193 ; rest, 35 N. Y. 501 ; Chancery, 1835, affd Ct. App.; 10 Abb. N. S. 64, N. Daggett V. Daggett, 5 Paige, 509. Y. Super. Sp. T. 1864, Simmons v. * 1863. Forrest «. Forrest, 35 N. Y. Simmons, 25 Super. 713. 501; Sup'm. Ct. 1871, Gallinger «. "Sup'm. Ct. 1874, Shepherd v. Gallinger, 4 Lans. 473 ; 61 Barb. 31. Shepherd, 1 Hun, 240 ; 58 N, Y. 644. 6 Chancery, 1838,Peokford«. Peck- » Com. PI. Sp. T. 1881, McQuien ford, 1 Paige, 374; Chancery, 1815, v. McQuien, 61 How. 280. BEFEEENCES IN MATRIMONIAL ACTIONS. 203 the parties are altered, a reference to ascertain the amount may be had after judgment.' A referee who, in an action for divorce, found against one of the parties, cannot be ap- pointed on haieas corpus proceedings as to the custody of a child of the marriage.^ ' § 7. References in Actions for Separation. — Actions for sepa- ration are referred in the same manner as actions for di- vorce for adultery, the mode of procedure is the same, and judgment is entered in the same manner. See pp. 186, 188, a?ife. Where the wife prevails in her suit and is without means, the husband may be compelled to pay the fees of the referee.^ The court can give only such judgment as is authorized by statute.* If on the trial plaintiff does not make out a case for separation, the complaint must be dis- missed.^ Affirmative relief may be granted to defendant.® To authorize a judgment of separation it must appear that there was actual violence, or reasonable apprehension of bodily injury ; '' but where the husband is plaintiff a single act is not enough, so long as there are grounds for believ- ing he can protect himself by a reasonable exercise of his marital rights.^ Mental suffering, without apprehension of personal injury, are not enough ; ' nor an austerity of man- ner, severe language, and occasional outbursts of temper ; '" nor angrily expelling wife on suspicion of unfaithfulness ; " nor in refusing to allow plaintiff to attend the church to 1 Com. PI. 1883, Middleberger v. Sup'm. Ct. 1848, "Whispell v. Whis- Middleberger, 12 Daly, 195. pell, 4 Barb. 317; Chancery, 1831, 2 Sup'm. Ct. 1886, Matter of Bliss, Perry «. Perry, 2 Paige, 501 ; Sup'm. 39 Hun, 594. Ct. Sp. T. 1869, Davis v. Davis, 37 3 Com. PI. Sp. T. 1885, Early u. How. 43. Early, 3 How. N. S. 339. * Chancery, 1846, Perry v. Perry, < 1878, Davis v. Davis, 75 N.T. 221. 1 Barb. Ch. 516. 5 1878, Davis v. Davis, 75 N. Y. 9 n. Y. Super. Sp. T. 1879, Pais- 231 ; Buff. Super. 1865, Palmer v. ley v. Paisley, 3 Law Bui. 6. Palmer, 39 How. 390. i" N. Y. Super. Sp. T. 1863, Solo- •> Code Civ. Proc. § 1765 ; Com. mon v. Solomon, 38 How. 318 ; Chan- Pi. Sp. T. 1859, McNamara b. Mc- eery, 1831, Mason «. Mason, 1 Edw. Namara, 3 Hilt. 547 ; 9 Abb. 18. Ch, 378. ' Sup'm. Ct. Sp. T. 1880, Ruck- " Sup'm. Ct. 1863, Barlow ®. Bar- man V. Ruckman, 58 How. 378 ; low, 3 Abb. N. S. 359. 204 LAW OF EEFEEEES. whicli she belongs ; ^ nor conduct tending to provoke dis- gust and annoyance ; ^ nor refusal to allow a wife to name a child ; ^ nor unkindness, fits of passion, violent language, ungentlemanly conduct.* But the injury need not be to the person. Unmercifully beating her child in her pres- ence is cruelty;^ so are spitting on a wife, or groundless and malicious charges against her chastity ; ^ so are words of menace accompanied by a probability of bodily vio- lence.''' Misconduct of plaintiff is a defense,^ and miscon- duct includes adultery.^ A finding of abandonment must be accompanied by a refusal to support,^" and this must be founded on evidence of fixed and determined purpose on the part of the husband to withdraw from the wife." Sub- sequent acts will revive condoned cruelty.^^ If the plaintiff is not within the provisions of the code as to residence, the motion for judgment will be denied.''^ A reference on de- fault in actions for separation is obtained in the same man- ner, and the proceedings thereon are the same as in actions for divorce for adultery. See p. 186, ante. § 8. References in Matrimonial Actions other tlian for a Divorce for Adultery or for a Separation. — A reference of the issues in an action to annul a marriage can be ordered only by con- sent of the parties, and to a referee designated only by the court \^* one to whom all the parties object may be appoint- •1 Chancery, 1833, Lawi-enoe ®. » Sup'm. Ct. Sp. T. 1883, Spahn Lawrence, 3 Paige, 367. «. Spahn, 13 Abb. N. C. 169 ; Sup'm. 2 Sup'm. Ct. Sp. T. 1863, Conk- Ct. 1880, Doe v. Roe, 23 Hun, 19. iin «. Conklin, 17 Abb. 30 n. lo Sup'm. Ct. 1868, Atwater v. 3 Sup'm. Ct. Sp. T. 1883, Appleby Atwater, 53 Barb. 621. ■u. Appleby, 3 Civ. Proc. 423. „ g ,^ ^t. Sp. T. 1880. Ruck- 4 Sup'm. Ct. Sp. T. 1884, De Meli ^^„ ,. R^ckman. 58 How. 378. V. De Meli, 67 How. 30. 6 Sup'm. Ct. 1863, Bihin «. Blhin, '' Chancery, 1842, Burr «. Burr, 17 Abb 19 '^^ 'PB.ige,, 30 ; Sup'm. Ct. 1848, Whis- 6 Sup'm.' Ct. 1848, Whispell «. P«" "" Whispell, 4 Barb. 5:17. "Whispell, 4 Barb. 217 ; 1878, Ken- '* Sup'm. Ct. 1883, Ramsden v. nedy v. Kennedy, 73 N. Y. 369. Ramsden, 28 Hun, 285. 'Sup'm. Ct. 1848, Whispell ®. " Code Civ. Proc. § 1012; Rule Whispell, 4 Barb. 217. 78. 8 Code Civ. Proc. § 1765. EEPEKENCES IN MATRIMONIAL ACTIONS. 205 ed.^ If the application is on, the ground that plaintiff was under the age of legal consent, it must be shown by affi- davit that the parties have not freely cohabited as husband and wife ; if on the ground that consent was obtained by ' fraud, that there has been no voluntary cohabitation ; if on the ground thg-t plaintiff was a lunatic, that the lunacy still continues, that the parties have not cohabited since plain- tiff was restored to his reason, and on the reference plain- tiff must be examined as to these facts.^ Where impotence is the basis of the action, that it still exists and is incura- ble,^ but the action must be brought within two years after the marriage.* In none of this class of cases can judgment be rendered by default for want of appearance or pleading, or, on the trial of an issue, without proof of the facts on which the allegations are founded. Declarations or con- fessions are insufficient.^ "Where impotence is the ground of the action the court may order a physical examination of the defendant ; ^ but where the wife is defendant a sec- ond examination will not be ordered where one has been had by competent surgeons.'' If the examination shows that the incapacity is curable, a divorce cannot be decreed, although defendant refuses to submit to an operation to ef- fect a cure.^ Misrepresentations as to character and prop- erty are not grounds for divorce,* but fraudulent repre- sentations as to health are.^" In the absence of positive concealment the man's ignorance of the woman's pregnancy at the time of marriage is not ground of nullity." 1 Code Civ. Proc. § 1024. ' Chancery, 1836, Devenbagh v, 2 Rule 74. Devenbagh, 5 Paige, 554 ; but see s Code Civ. Proc. § 1743. Newell d. Newell, 9 Paige, 35. * Code Civ. Proc. § 1753 ; Sup'm. » Chancery, 1836, Devenbagh d. Ct. 1861, Griffin ?>. Griffin, 23 How. Devenbagh, 6 Paige, 175. 183 ; compare Kaiser ®. Kaiser, 16 » Sup'm. Ct. Sp. T. 1876, Klem v. Hun, 603. Wolfsohn, 1 Abb. N. C. 134. 6 Code Civ. Proc. § 1753. " Sup'm. Ct. 1875, Meyer v. Meyer, 6 Chancery, 1836, Devenbagh v. 49 How. 311. Devenbagh,5Paige, 554; Chancery, " N. Y. Super. 1883, Earth d. 1841, Newell ». Newell, 9 Paige, 35. Earth, 5 Law. Bui. 87. FORMS. No. 1. CAPTION OP AN ORDER OF COURT. IN AN ACTION. At a special term of the court held at the court-house in the of on the day of A. D. 18 . Present. — Hon. Title of the cause. On reading and filing, &c. , Justice. No. 2. CAPTION OF A CHAMBER ORDER IN AN ACTION. Title of the Cause. > On the annexed affidavit {or it appearing to my satisfac- tion from), it is ordered, &o. 208 LAW OF EEFEEEES. No. 3. CAPTION OF AN ORDER OF COURT IN SPECIAL PROCEEDINGS. At a special term of the court held at the court-house in the of on the day of A. D. 18 . Present. — Hon. , Justice. In the Matter of the appli- cation of , I On reading and filing, &c. No. 4. CAPTION OF A CHAMBER ORDER IN SPECIAL PROCEEDINGS. In the Matter of > On the annexed affidavit (or it appearing to my satisfac- tion from), ordered, &c. No. 5. CAPTION OF AN AFFIDAVIT. Title of the Cause or Pro- f ceeding. i County of , ss. A. B., being duly sworn, deposes and says, &c. FOEMS. 209 No. 6. CAPTION OF NOTICE OF MOTION. Title of tlie Cause. > Sir: You will please take notice, &c. No. 7. CONSENT TO REFER IN OTHER THAN MATRIMONIAL ACTIONS. Title of the Cause. We hereby consent that the above entitled action, and all the issues therein be referred to {name of referee, if agreed upon) to hear and determine the same, and that either party may enter and order to that effect. {If the parties desire to oiame another referee in case the one selected refuses to serve, or in case a new trial is granted,, add) This stipulation is made upon the express condition that should the said refuse to serve, or should a new trial of this action be granted, the parties hereto shall have the right to name the new referee. Date. , Plaintiff's Attorney. , Defendant's Attorney. 210 LAW OF EEFEEEES. No. 8. ORDER OF REFERENCE BY CONSENT. Caption as in form No. 1. > On reading and filing the consent of the parties hereto, and on motion of attorney for the {plaintiff or defendant), It is ordered that the aboTe entitled action, and all the issues therein be referred to , Esq., counsellor at law, to hear and determine the same. No. 9. NOTICE OF TIME AND PLACE OF HEARING BY REFEREE. Title of the Cause. > By virtue of an order in the above entitled action bearing date the day of A. D. 18 ,1 the referee appointed therein do hereby appoint the day of A. D. 18 , at o'clock in the noon, at my office. No. , street, in the city of , as the time and place of the first hearing in said action. Date. Signature. Address. FOBMS. , 211 No. 10. NOTICE OF TRIAL BEPOKE REFEREE. Title of tlie Cause. > Sir: You will please take notice tliat the above action will be brought to trial {if served hy plaintiff insert and an inquest taken therein, if hy defendant and a motion made to dismiss the complaint), before the referee therein at his office No. , street, in the of on the day of , , A. D. , at o'clock in the noon of that day. Date. Signature. Address. No. 11. AFFIDAVIT BY PARTY TO MOVE FOR COMPULSORY REFERENCE. ■'I Caption as in form No A. B., the {plaintiff or defendant) in this action, being duly sworn, deposes and says : I. This action is brought to recover {here state nature of action). II. That the action is at issue as to all parties, and is number on the calendar of this court. III. That the answer is {here state nature of defense). IV. That the trial of this action will, as this deponent is advised and believes, involve the examination of a long 212 ^ LAW OF EEFEREES. account on the part of the {plaintiff, or defendant, or 'both) consisting of at least items of charges and credits, and will not reqiiire the decision of difficult questions of law. Jurat. (Signature.) No. 12. AFFIDAVIT BY ATTORNEY TO MOVE FOR COMPULSORY REFERENCE. Caption as in form No. 5. > , attorney for the (plaintiff or defendant) here- in, being duly sworn, deposes and says : I. This is an action for {here state nature of action) as ap- pears by the complaint herein, of which a copy is hereto annexed, marked. — II. That the answer is {here state nature of answer) as appears by a copy thereof hereto annexed marked — III. That the cause is at issue as to all parties and ready for trial, and is No. on the calendar of this court. IV. That to maintain the issues made by the pleadings it will be necessary for the {plaintiff, defendant, or loth) to prove an account consisting of at least items of charges and credits, and the trial will not involve the decision of difficult questions of law. Y. That the reason this affidavit is not made by {plain- tiff or defendant) is {state reasons). Jurat. Signature. FORMS. • 213 No. 13. NOTICE OF MOTION FOR REFERENCE OF ISSUES. Caption as in form No. 6. > You will please take notice tliat upon tlie affidavit, of which a copy is hereto annexed (if other papers are to he read name them), or (and on all the pleadings and proceed- ings in this cause) a motion will be made at special term of this court to be held at on the day of A. D. , at o'clock in the noon, or as soon there- after as counsel can be heard, for an order referring this cause and all the issues to a referee to hear and determine. Yours, etc. Date. Address. Attorney for. No. 14. AFFIDAVIT TO OPPOSE MOTION WHERE "WAS A SPECIAL AGREEMENT TO PERFORM THE LABOR OR RENDER THE SERVICES FOR A GROSS SUM. Caption as in form No. 5. > A. B., the ('plaintiff or defendant), being duly sworn, de- poses and says : I. That the trial of this action will not involve the exami- nation of a long account within the provisions of section 1013 of the code of civil procediire. II. That the action is for work, labor, and services, all which defendant agreed to perform for the sum of dol- lars, and there are no other items of debit or credit in- volved herein. 214 LAW OF REFEREES. No. 15. AFFIDAVIT TO OPPOSE MOTION FOR REFERENCE BY DENYING ACCOUNT. Caption as in form No. 5. > A. B. {plaintiff or defendant), being duly sworn, deposes and says : I. That the issue herein does not involve a long account within the provisions of section 1013 of the code of civil procedure. II. That the action is for goods sold and delivered, that all said goods were sold at one time, that the credit thereon was a payment at said time and deducted from the amount of said bill, and there are no other items of debit or credit involved therein. Ill {Set forth any other matter showing that the alleged ac- count only involves numerous items of damage.) Jurat. Signature. No. 16. AFFIDAVIT TO OPPOSE MOTION WHERE THE ACTION IS NOT POUNDED ON CONTRACT. Caption as in form No. 5. A. B., the defendant {or plaintiff^ in this action, being duly sworn, deposes and says : I. That this action does not belong to the class of refer- able actions within the meaning of section 1013 of the code of civil procedure. FORMS. 215 II. That this action is not founded on contract, but is for unliquidated damages for breach of contract {or for damages for negligence, or fravd, as the case may ie) as ap- pears by the complaint herein, of which a copy is hereto annexed. Jurat. Signature. No. 17. AFFIDAVIT TO OPPOSE MOTION WHERE FRAUD IS SET UP AS A DEFENSE. Caption as in form No. 5. > A. B., plaintiff {or defendant) herein, being duly sworn, deposes and says : I. That this action is for goods sold and delivered {or other contract). II. That the answer contains allegations of fraud in pro- curing the sale {or contract) as appears by the answer here- in, of which a copy is hereto annexed. Jurat. Signature. No. 18. AFFIDAVIT TO OPPOSE MOTION WHERE THE ACCOUNT IS ONLY COLLATERALLY INVOLVED. Caption as in form No. 5. > A. B., the plaintiff {or defendant), being duly sworn, de- poses and says : I. That this action is brought to recover {state cause of action). II. That the answer is {state contents of answer). 216 LAW OF KEFEBEES. III. That the real issue is {state issue), and no account- ing can be had until such issue has been tried and deter- mined. Jurat. Signature. No. 19. AFFIDAVIT TO OPPOSE MOTION ON THE GROUND THAT A SPEEDY TRIAL CAN BE HAD AT CIRCUIT. Caption as in form No. 5. > A. B., the plaintiff {or defendant), being duly sworn, de- poses and says : , I. That this action is brought to recover {state cause of action), that the answer is {state contents of answer). II. That no difficult questions of law, are involved therein, that the cause can be tried at the {next) circuit in less than one day, ahd a reference, on account of the additional trou- ble and expense involved, would be oppressive to this de- ponent. Jurat. Signature. No. 20. AFFIDAVIT TO OPPOSE MOTION WHERE DIFFICULT QUES- TIONS OF LAW ARE INVOLVED. Caption as in form No. 5. > A. B., the plaintiff {or defendant), being duly sworn, de- poses and says : I. That this action is brought to recover {state cause or action), and the defense is {state nature of defense). II. That this deponent has fully and fairly stated the case in this action to C. D., his counsel, who resides at No. , street, in the of , and that the trial of FOKMS. 217 tliis action will involve the decision of a difficult question of law, as he is advised by his said counsel, after such statement made as aforesaid and verily believes. III. On the trial of this cause deponent will insist (here deponent's point of law), which point, as deponent is ad- vised, is material to the case, and defendant's counsel will say [here state defendant's point of law), and said points are difficult in their application to this case. Jurat. Signature. No. 21. STIPULATION TO DEFEAT REFERENCE. Title of the Cause. > Sir: You will please take notice that if this case is tried be- fore a jury and the jury or the court decide that defendant {or plaintiff) is liable for the goods sold {or inatters alleged^ he will not question the items of the account, but will ad- mit that it is in all respects correct. Yours, etc. Date. Address. Attorney for. No. 22. STIPULATION NOMINATING REFEREE IP MOTION FOR REFERENCE IS GRANTED. Title of the Cause. > It is hereby stipulated and agreed by and between the parties hereto that if the motion for a reference be granted , Esq., shall be appointed referee herein. Date. , Att'y for Pl'ff. , Att'y for Deft. 218 LAW OF EEFEEEES. No. 23. ORDER OF REFERENCE MADE ON CONTESTED MOTION. Caption as in form No ,.,j On reading and filing the affidavits of {naming papers read). After hearing , Esq., of counsel for in favor of said motion, and , Esq., of counsel for in opposition thereto, on motion of Esq., attorney for said {plaintiff or defendant), it is ordered that the above entitled action, and all the issues therein, be referred to , Esq., counsellor at law, to hear and determine the same. No. 24. ORDER OF REFERENCE MADE AT CIRCUIT. At a circuit {or trial term) of the court held at the court-house in the of on the day of A. D. 18. Present. — Hon. , Justice. Title of the cause. > This action coming on to be tried before {and a jury), and it appearing to the satisfaction of the court that the trial will involve the examination of a long ac- count, it is ordered that this cause and all the issues therein be referred to , Esq., counsellor at law, to hear and determine the same. FORMS. 219 No. 25. STIPULATION TO REFER PURSUANT TO ORDER GRANTING A FAVOR. Title of the Cause. > In conformity witli an order made herein on the day of A. D. 18 , or in conformity with the terms of the foregoing order). It is hereby stipulated on the part of the plaintiff {or de- fendant) to refer this action and all the issues thereon to , counsellor at law, to hear and determine the same. {If the order contains other conditions stipulate to comply). Date. Signature. No. 26. OATH OF REFEREE. Title of the Cause. County of , ss. I, , the referee duly appointed herein by an order bearing date the day of A. D. 18 , to {state object of reference) do solemly swear that I will faithfully and fairly try the issues {or determine the questions referred to me) and make a just and true report thereon according to the best of my understanding. Jurat. Signature. 220 LAW OF EEFEBEES. No. 27. WAIVER OP OATH OF REFEREE. Title of the cause. > It is hereby stipulated in accordance with the statute in such case made and provided that the oath of the referee be waived by the parties to this action. Dated , , A. D. 18 . , Attorney for Plaintiff. , Attorney for Defendant. No. 28. STIPULATION AS TO FEES OF REFEREE. Title of the Cause. > It is hereby stipulated and agreed by and between the parties hereto that the fees of , the referee appointed herein by an order bearing date the day of A. D. 18 , shall {name rate agreed upon) for each day spent in the business of the reference. Date. , Attorney for Plaintiffs. , Attorney for Defendants. No. 29. OATH OF WITNESS. Tou do solemnly swear {or affirrn) that the evidence you shall give as to the matters in difference in this action be- tween , plaintiff,and , defendant, shall be the truth, the whole truth, and nothing but the truth. FOBMS. 221 No. 30. SUBPCENA TO APPEAR AND GIVE EVIDENCE. The People of the State of New York : To , Greeting : We command you, that all business and excuses being laid aside, you and each of you appear and attend before the referee appointed by the court at {specif y place) on the day of A. D. 18 , at o'clock in the noon, to testify and give evidence in a certain action now pending in said court, then and there to be tried, between , plaintiff, and , defendant, on the part of the , and for failure to attend you will be deemed guilty of a contempt of court, and liable to pay all loss and damage sustained by the party aggrieved, and for- feit fifty dollars in addition thereto. "Witness : Hon. of said court at the . of said court the day of one thousand eight hundred and By the Court. Attorney, No. 31. SUBPffiNA TO APPEAR AND GIVE EVIDENCE AND PRODUCE BOOKS, DOCUMENTS, ETC. The People of the State of New York : To , Greeting : We command you, that all business and excuses being laid aside, you and each of you appear and attend before the referee appointed by the court at {specify place) on the day of A. D. 18 , at o'clock in the noon, to testify and give evidence in a 222 LAW OF KEFEKEES. certain action new pending in said court tlien and there to be tried between , plaintiff, and , defendant, on the part of the , and that you bring with you and pro- duce at the time and place aforesaid a certain [describe pa- pers required) now in your custody, and aU other deeds, evidences, and writings which you have in your custody or power concerning the premises. And for a failure to at- tend you will be deemed guilty of a contempt of court, and liable to pay all loss and damages sustained thereby to the party aggrieved, and forfeit fifty dollars in addition thereto. "Witness : Hon. Chief Justice of said court, at the of said court the day of one thousand eight hundred and Per Curiam. Attorney. , Clerk. No. 32. AFFIDAVIT OF SERVICE OF SUBPCENA. Title of the cause. > County of , ss. , being duly sworn, says that he is of the age of years and upwards, that at {describe place of service) on the day of 18 , he served the within subpoena upon , the witness named therein, by delivering to and leaving with him personally a true copy thereof, and at the same time and place exhibiting to him the within original, and paying to him the sum of , his fees for traveling to and from the place where he was required to attend in and by the said subpoena, and for one day's attendance thereat ; and that he knew the said to be the individual mentioned and described in said subpoena as such witness. Sworn to before me, this day of 18 . F0BM8. 223 No. 33. ORDER ADJUDGING A WITNESS GUILTY OP CONTEMPT IN THE IMMEDIATE VIEW AND PRESENCE OP THE COURT. Present : Title of tlie cause. > Whereas, on tlie trial of this cause before me, sole referee herein, this day a witness called and sworn in behalf of the , being by me directed, did refuse to answer a pertinent and proper question {or did refuse to produce a certain document or paper then iii his possession, describing it). On motion of , attorney for it is ordered that the said by reason of the premises be and he hereby is adjudged guUty of contempt of court. It is further ordered that the said , for said contempt of which he has been so adjudged guilty, be im- prisoned by the sheriff of the county of until he shall be willing to answer such questions {or until he shall he willing to produce such iooks and papers), and until he shall have paid the costs and expenses of these proceed- ings to punish for said contempt, to wit, the sum of , and the sheriff's fees on the warrant to be issued hereon are paid, or until he shall be discharged according to law, and that a warrant issue in accordance herewith. - Sole Eeferee. Dated , A. D. 18 . No. 34. ORDER TO SHOW CAUSE WHY THE ACCUSED SHOULD NOT BE PUNISHED FOR CONTEMPT. Title of the Cause. > It appearing to me by the affidavit of that on the day of , A. D. 18 , a subpoena 224 LAW OP BEFEREES. to appear and give evidence, {or appear and produce hooks, documents, and papers, describing them), in the above enti- tled action, duly issued out of this court, directed to , on the day of , A. D. 18 , was, on the day of , A. D. 18 , duly served upon, and at the same time the proper fees paid to the said , and the said having failed and refused to appear at the time and place in said subpoena named. It is ordered and directed that the said show cause before me , sole referee herein, at my office at No. street, in the of , on the day of , A. D, 18 , at o'clock in the noon of that day, why he should not be punished for the said alleged contempt. It is further ordered that service of this order and the affidavit of the service of the said subpoena be served on the said on or before the day of ,A. D. 18 . , Sole Beferee. Dated, , A. D. 18 . No. 35. ORDER DIRECTING ATTACHMENT TO ISSUE FOR CONTEMPT OF COURT. Title of the cause. > It appearing to me by the affidavit of that on the day of , A. D. 18 , a subpoena to appear and give evidence (or appear and produce books, doc- uments, and papers, describi?ig them) in the above entitled action, duly issued out of this court, directed to , was, on the day of , A. D. 18 , duly served upon, and at the same time the proper fees paid to the said , and the said having failed and refused to appear at the time and place in said subpoena named. FOEMS. 225 It is ordered that a warrant of attachment issue to the sheriff of county directing him to arrest and bring before this court forthwith (or at a time and place Tiamed), the said there to answer for the said offense. , Sole Eeferee. No. 36. WARRANT OP ATTACHMENT ON ORDER TO SHOW CAUSE. The people of the state of New York to the sheriff of the county of greeting : Whereas on the day of , A. D. 18 , by an order made by the court at a trial term thereof held at the office of sole referee in this cause, at No. street, in the of , in an action then pending in said court wherein was plaintiff, and was defendant, it appeared by the af&davit of that had been guilty of contempt of court in failing and refusing to obey a subpoena duly issued out of said court to appear and give evidence {or to produce hooks, documents or papers, describing them). Now, therefore, we command you, pursuant to said order bearing date the day of , A. D. 18 , that you arrest the said and have him before this court here sitting forthwith {or at a time and place fixed in the order) there and then to answer for the said offense. Witness , sole referee in this cause at on the day of , A. D. 18 . Attorney for [Office address.] Indorsement under § 2275. The accused may give an undertaking in the sum of dollars for his appearance to answer. , Sole Eeferee. 226 LAW OF EEFEEEES. No. 37. UNDERTAKING TO PROCURE DISCHARGE. The people of the state of New York on the relation of agiainst Whereas, on the day of , A. D. 18 , a war- rant of attachment was issued to the sheriff of the county of by sole referee, in an action then pending wherein was plaintiff, and was defendant, directing him (state directions of warrant), and whereas by indorsement on said warrant the said sheriff was author- ized to accept from said an undertak- ing in the sum of dollars for his appearance to answer, Now, therefore, we, the said , and , of by occupation a and , of by occupation a do hereby jointly and severally undertake, pursuant to the statute in such case made and provided, with the people of the state of New York that the said shall and will appear at the time and place in said war- rant of attachment named, and abide the decision of the said referee. Signatures. Dated, County of , ss, one of the sureties on the foregoing undertaking being duly sworn deposes and says, that he is a resident and holder within this state, and is worth the sum of dollars over and above all his debts and liabilities, and exclusive of property exempt by law from execution. FOBMS. 227 Sworn to before me this ) day of A. D. 18 .5 County of , ss. one of the sureties on the foregoing undertaking, being duly sworn, deposes and says that he is a resident and holder within this state, and is worth the sum of dollars over and above all his debts and lia- bilities, and exclusive of property exempt by law from exe- cution. Sworn to before me this > day of ,A.D.18 .5 State of New York, ) County of 5 ^^• On this day of , A. D. 18 , before me per- sonally came to me known, and known to me to be the persons described in, and who executed the foregoing instrument, and severally acknowledged to me that they executed the same. No. 38. SHERIFF'S RETURN TO WARRANT OF ATTACHMENT IN CON- TEMPT PROCEEDINGS. I, , Sheriff of the county of do hereby certify and return that I have arrested the said defendant, , by virtue of the within attachment, and have him here in custody in the absence of bail {or J arrested the said defendant on the within writ and he, pursuant to the endorsement on said writ, hefore the return day thereof, gave an undertaking, which is herewith filed, and I thereupon discharged said defendant, from ari'est). , Sheriff. Dated , A. D. 18 . 228 LAW OF REFEREES. No. 39. ORDER CONVICTING DEPENDANT OF CONTEMPT, AND DIRECTING PUNISHMENT. The people of the state of New York on the relation of against A writ of attachment having been heretofore issued by me commanding and directing the sheriff of the county of to arrest and bring before me forthwith, {or at the time and place mentioned in the warrant), to answer for his contempt in (state cause as set forth in warrant), and the said sheriff having made his return that he had attached the body of the said defendant , and then had him in custody before me, {or that he had taken from, him an undertaking to appear and answer in accord- ance with the endorsement on said warrant), and the said de- fendant being then personally present before me, and the said defendant having been interrogated hj va.e, {state in full what took place on the examination), and it appearing to me from the said interrogatories and answers that the said de- fendant was guilty of the contempt charged, and that such contempt and misconduct was calculated to, and did defeat, impair, impede or prejudice the rights of the said , now on motion of said , attorney for the said , it is ordered that the said defendant has committed {recite in full the offense). It is further ordered that a fine of dollars be, and the same hereby is imposed on the said for his said misconduct. It is further ordered that the said pay to the said the sum of dollars, the costs and expenses of these proceedings. And it is further ordered that the said defendant , be and he hereby is directed to stand com- roBMS. 229 mitted to the common jail of the county of , to remain there charged with said contempt until said fine so as aforesaid imposed, together with said sum of dollars, costs and expenses of these proceedings, and the sheriff's fees herein, be fully paid, unless sooner discharged by the court. Dated, , A. D. 18 , Sole Eeferee. No. 40. ORDER ALLOWING AMENDMENT OF PLEADINGS. Title of the Cause. > A motion having been duly made at a hearing of this cause before me on this day of , by , attorney for , for leave to amend his , by {inserting therein or striking out as the case may he), now on motion of , attorney for said , it is ordered that said motion be and the same hereby is granted, upon (here state terms, if any, are imposed). And it is further ordered that said serve his amended pleading upon [plaintiff's or defendant's) attorney within days from date hereof. Dated, , A. D. 18 . , Sole Referee. 230 LAW OF EEFEEEES. No. 41. ORDER GRANTING AN ADJOURNMENT ON TERMS. Title of the Cause. > A motion having been made before me by , attorney for , now on reading and filing the affidavits of , after hearing , of counsel for the in favor of said motion, and , of counsel for the in opposition thereto, on motion of , attorney for said , it is ordered that the trial of this cause stand adjourned to day the day of , A. D. , at o'clock in the noon, upon condition that {state terms imposed). Dated, , A. D. 18 . , Sole Referee No. 42. NOTICE TERMINATING REFERENCE FOR FAILURE TO DE- LIVER OR FILE REPORT WITHIN SIXTY DAYS. Title of the Cause. > Sirs: You will please take notice that the report of the referee herein not having been delivered or filed within sixty days from the time when the cause or matter was finally sub- mitted, as required by statute, the elects to terminate the reference herein. Dated, , A. D. 18 . Yours, etc. To , Attorney for Referee, and Attorney for FOEMS. 231 No. 43. REQUESTS TO FIND. Title of the Cause. > Sir: The plaintiff hereby requests you make findings of fact and conclusions of law as follows : Findings of fact — 1. 2. 3. Conclusions of law — 1. 2. 3. Dated, , A. D. 18 . Yours, etc., , Attorney for Plaintiff. No. 44. GENERAL FORM OF REPORT OF SOLE REFEREE TO HEAR AND DETERMINE ALL THE ISSUES. Title of the Cause. To the Court. I, the undersigned sole referee, duly appointed by an or- der of this court bearing date the day of , A. D. 18 , to hear and determine the above entitled action and all the issues therein, do hereby report : 232 LAW OF BEFEKEES. I. I have taken and subscribed tlie statutory oath which is hereto annexed, {or the oath of the referee was waived by the parties, as appears hy the stipulation hereto annexed). II. I have been attended by the parties and their coun- sel, , Esq., appearing in behalf of plaintiff, , and , Esq., appearing in behalf of defendant, , and having heard the proofs and allegations of the parties, and the arguments of counsel thereon, I do find as follows : III. I find as matter of fact — 2. 3. And as conclusions of law — 1. 2; 3. 4. That there is now due from the defendant to the plaintiff the sum of doUars, with interest from , and I order judgment therefor with costs to be taxed, {or that defendant is entitled to judgment, dismissing the complaint, with costs to defendant to he taxed, and I order judgment accordingly). Dated, ,A. D. 18 . , Sole Referee. {If an accounting is necessary and the referee decides to proceed and take the account, insert). That an account should be had and taken of {state matters as to which and how the account should ie taken), and I order judg- ment for such account, and that plaintiff {or defendant) recover costs. Dated, , A. D. 18 . , Sole Referee. FORMS. 233 No. 45. GENERAL FORM OF REPORT WHERE MORE THAN ONE REFEREE HAS BEEN APPOINTED. Title of the Cause. > To tlie Court. We the undersigned referees, duly appointed by an order of this court bearing date the day of A. D. 18 , to hear and determine the above entitled action and all the issues therein, do hereby report : I. "We have severally taken and subscribed the statutory oath which is hereto annexed, (or the oath was loaived, etc., as inform 44). II. We have been attended by the parties and their counsel, , Esq., appearing for the plaintiff, and , Esq., appearing for the defendant, and all of us have heard all the proofs and allegations of the parties, and the argu- ments of counsel thereon, all have met toprepare the report, and we do find and report as follows : III. We find as matters of fact — 1. 2. 3. And as conclusions of law — 1. 2. 3. That there is now due from the defendant to the plaintiff the sum of dollars, with interest from the day of , A. D. 18 , for which amount we order judgment with costs for the plaintiff [if defendant is entitled to judgment, change as inform No. 44). > Eeferees. 234 LAW OF EEFEEEES. No. 46. KEPORT "WHERE JUDGMENT 18 ORDERED ON THE PLEADINGS. As in form No. 44 to Par. ■■! II. I have been attended on the trial by the parties and their respective counsel, _ appearing for the plaintiff, and appearing for the defendant. A motion having been made by , of counsel for the plaintiff (or defendant) for judgment for plaintiff {or defendant) on the pleadings, after hearing coun- sel for the respective parties I do order judgment on the pleadings for the plaintiff {or defendant) for the sum of dollars, with costs. Dated, , A. D. 18 . , Sole Eeferee. No. 47. REPORT WHERE PLAINTIFF FAILS TO APPEAR ON THE TRIAL. As in form No. 44 to Par. II. > II. I have been attended on the trial by the defendant in person and , his attorney. Due proof of proper service of notice of trial upon the plaintiff's attorney was made before me, and plaintiff having failed to appear, I order judgment, dismissing the complaint with costs. Dated, , A. D. 18 . , Sole Eeferee. (If defendant interposed a counter-claim add findings in respect thereto that defendant is entitled to recover there- under, and direct judgment for the amount so found due, with costs.) FOEMS. 235 No. 48. REPORT "WHERE DEPENDANT FAILS TO APPEAR ON THE TRIAL. Title of the Cause. > To the Court. I, the undersigned sole referee, duly appointed by an or- der of this court bearing date the day of , A. D. 18 , to hear and determine the above entitled action and all the issues therein, do hereby report : I. I have taken and subscribed the statutory oath which is hereto annexed, {or the oath has ieen duly waived, etc.) II. I have been attended on the trial by the plaintiff in person and , his attorney. Due proof of proper service of notice of trial upon the de- fendant's attorney was made to me, and the defendant hav- ing failed to appear, I do order judgment for the plaintiff for the sum of dollars, and interest from the day of , A. D. 18 , the amount claimed in the complaint, with costs. Dated, , Sole Eeferee. [If judgment can he taken only on application to the court, after recitiny defendant's failure to appear, insert). I have heard the allegations and proofs of the plaintiff, and I find there is due to the plaintiff from the defendant the sum of {or that the plaintiff is entitled to recover from the defendant the sum of dollars damages), for which amount I order judgment for the plaintiff, with costs to be taxed. Dated, , A. D. 18 . , Sole Beferee. 236 LAW OF EEFEREES. No. 49. EEPORT DISMISSING COMPLAINT WITHOUT PREJUDICE WHERE PLAINTIFF REFUSED TO BRING IN NECESSARY PARTIES. As in form No. 45 to "3." i And I find as a conclusion of law tliat is a necessary party to this action, tliat complete determination of the controversy cannot be had without his presence, and the plaintiff having refused, on leave given, to make application to make the said a party hereto, I do order judgment dismissing the complaint with costs without prejudice to the right of plaintiff to bring another action. Dated, , A. D. 18 . , Sole Eeferee. No. 50. REPORT OF EEFEREE ON TRIAL OF DEMURRER. Title of the Cause. > To the Court. I , sole referee, appointed by order of this court bearing date the day of , A. D. 18 , to hear and determine this cause, do report as f oUows : I. I have taken and subscribed the statutory oath, {or the oath has ieen duly waived, etc.) II. I have been attended by counsel for the respective parties, , Esq., appearing for the plaintiff, and , Esq., appear- ing for the defendant, and have heard their arguments, and FORMS. 237 I do find as matter of law that the plaintiff {or defendant) is entitled to judgment on the demurrer herein with costs, and I direct an interlocutory judgment sustaining {or over- riding) said demurrer to be entered herein, with leave to plaintiff {or defendant) to amend his pleading upon pay- ment of said costs, {or other terms^ and in case said plaintiff (or defendant) fails to comply with the terms hereby im- posed within days from notice of the entry of said interlocutory judgment, that final judgment be entered for the plaintiff {or defendant) with costs. Dated, , A. D. 18 . , Sole Eeferee. No. 51. REPORT WHERE INCREASED DAMAGES ARE GIVEN BY STATUTE. As in form No. 45 to finding as a conclusion of law that plaintiff {or defendant) is entitled to receive a sum named as damages, and add and in accordance with the statute in such case made and provided I order judgment for the plaintiff {or defendant) in the sum of (increased dam- ages) doUars damages with costs. Dated, , A. D. 18 . , Sole Eeferee. No. 52. REPORT WHERE PLAINTIFF RECOVERS LESS THAN DE- FENDANT OFFERED UNDER § 736 OF THE CODE. As in form No. 45 to the finding as a conclusion of law that plaintiff has suffered damage in a sum named, and add 238 LAW OF REFEREES. And I do further find and report, in accordance •with the statute in such case made and provided, that defendant's attorney duly served with his answer in this cause an offer, that if defendant failed in his defense, damages might be assessed at the sum of dollars, which said offer was not accepted by the plaintiff. And I do further find and report, that in accordance with the statute in such case made and provided, I have ascertained and determined that the amount of the expenses necessarily incurred by defendant in preparing for the trial of the question of damages is the sum of dollars, which being deducted from the amount of damage allowed to plaintiff herein, leaves the sum of dollars, for which said sum of dollars I do order judg- ment for the plaintiff, with costs. Dated, , A. D. 18 . , Sole Eeferee. No. 53. APFIDAVIT OF REFEREE AS TO PEES. Caption as in No. 5. > , the referee herein, being duly sworn, deposes and says : I. The trial of this cause was begun before me on the day of , A. D. 18 , and was concluded on the day of , A. D. 18 , when the cause was finally submitted. The number of hearings at which evidence was taken was , to wit, on the {give dates), the number spent in hearing arguments of counsel was , to wit : on the {give dates), and the number of adjourn- FOBMS. 239 ments at the request of parties without previous notice to me was , on the {give dates), and the number of days spent in considering the case and preparing the report was as follows {give dates) : II. The case was intricate and difficult on account of the number of sittings before me, the complicated nature of the accounts presented, and the difficult questions of law in- volved. The plaintiff presented requests to find mat- ters of fact and conclusions of law, and the defendant made requests. {State any other matter showing the cause was difficult or co-implicated). Jurat. Signature. No. 54. CERTIFICATE OF REFEREE THAT THE ACTION IS A PROPER ONE FOR AN EXTRA ALLOWANCE. Title of the Cause. I, , sole referee, before whom the issues in the above entitled action were tried, do hereby certify, that this action is brought to recover {state object), that the answer is {state contents of answer), that the amount claimed in the summons was {or the valiie of the property involved was) , that the amount recovered was , that the number of hearings at which testimony was taken before me was , that many difficult questions were involved, and in the opinion of the undersigned this case was difficult and extraordinary within the meaning of section 3253 of the code of civil procedure. Dated, , A. D. 18 . , Sole Eeferee. 240 LAW OF EEFEEEES. No. 55. CERTIFICATE FOR COSTS, OR INCREASED COSTS. Title of the Cause. > I, , sole referee to hear and determine all the issues in the above entitled action, do hereby certify, that upon the trial the title to real prop- erty came in question (o7' any other matter entitling party to increased costs). Dated, , A. D. 18 . , Sole Eeferee. No. 56. EXCEPTIONS TO RULING OF REFEREE. Title of the Cause. > Sirs : You will please take notice that the plaintiff (or defend- ant) hereby excepts to the following rulings of the referee in the above entitled action. 1. He excepts to the refusal of the referee to find in ac- cordance with the first request. [Repeat as to each request?^ Yours, etc., Dated, , A. D. 18 , To , Plaintiff's Attorney, (Office address,) , Defendant's attorney. and , Clerk. FORMS. 241 No. 57. EXCEPTIONS TO THE REPORT OF THE REFEREE. Title of the cause. > Sirs: You will please take notice that the plaintiff (or defend- ant) hereby excepts to so much of the first conclusion of law as finds (state part eaxepted to). 2. He excepts to the second conclusion of law and each and every part thereof. Yours, etc., Dated, , A. D. 18 . Attorney for To Messrs. , Attorney for and , Clerk. No. 58. CASE ON APPEAL. 1 Title of the Cause. > 2 This action was begun by the service of a summons 3 (or summons and complaint) upon , 4 on the day of , A. D. 18 . 5 The summons, complaint, answer, and order of refer- 6 ence are included in the judgment roU hereto annexed, 7 which forms part hereof. (If changes were made in the 8 -parties, state them.) 9 The issues herein, in pursuance of said order of ref- 10 erence, came on to be tried before said 242 LAW OP EEFEEEES. 1 , sole referee herein, on the day of 2 , A. D. 18 , and subsequent days, wlien, 3 the referee having taken the statutory oath {or the oath 4 of the referee having ieen dulywaived),\h.e ioMovfing evi- 5 dence was taken : 6 , plaintiff, being duly 7 sworn, testified as follows : 8 (Here take in plaintiff^ s direct examination^ 9 Upon cross-examination the plaintiff testified as fol- 10 lows: 11 {Here take inplaintif-'s cross-exa?mnation.) 12 Plaintiff then rested. 13 Defendant moved to dismiss the complaint, on the 14 ground {state grounds). 15 The motion was denied, and defendant excepted. 16 , the defendant, called 17 and sworn in his own behalf, testified as follows : 18 {Here take in defendant's examination.) 19 Defendant then rested, and thereupon the cause was 20 summed up and submitted. 21 The following requests to find were submitted by 22 plaintiff {or defendant). 23 {State each request separately ; each ruling thereon sepa- 24 rately.) 25 The said referee then duly filed his report, which 26 forms part of the judgment roll herein. 27 The plaintiff {or defendant) duly filed his exceptions 28 to said report, and to the rulings of said referee on the 29 said requests to find, which form part of said judgment 30 roll. 31 The foregoing contains all the proceedings had, and 32 all the testimony taken on said trial. 33 The following is the opinion rendered by the referee 34 in said cause, {or no opinion was rendered, or if one was 35 rendered, or a copy could not ie procured, insert an affi- 36 davit to that effect). F0EM8. 243 No. 59. NOTICE ENDORSED ON CASE. Title of the Cause. > Sir: You will please take notice that the within is a copy of the plaintiff's {or defendant's) proposed case herein. Dated, , A. D. 18 . , Attorney for To , Attorney for No. 60. PROPOSED AMENDMENTS TO CASE. Title of the Cause. ! Sir: You will please take notice that the plaintiff (or defend- ant), proposes the following amendments to the proposed case herein : FIBST AMENDMENT. Line of page . Strike out words {specify ones ob- jected to), and insert instead thereof {state corrections). ■ SECOND AMENDMENT. Strike out all of lines on page Yours, etc. Dated, , A. D. 18 . , Attorney for To , Attorney for ' 244 LAW OF KEFEBEES. No. 61. NOTICE OF SETTLEMENT OF CASE. Title of the cause. > Sir: You will please take notice, that the proposed case and amendments thereto will be presented to , referee herein, at his office No. street, in the of , on the day of A. D. 18 , at o'clock in the Tours, etc. noon, for sett] Dated, ,A. D. 18 , To , Attorney for , Attorney for No. 62. ORDER SETTLING CASE. The foregoing case and exceptions was settled before me this day, and I order the same filed as so settled, and to be annexed to the judgment roll herein. {If any of the exhibits are to he printed at length add) Plaintiff's exhibits Nos. {des- ignate them), and defendant's exhibits {designating them), to be printed at length. Dated, , A. D. 18 . , Sole Referee. roKMs. 245 No. 63. BILL OF EXCEPTIONS. 1 Title of the Cause. i 2 This action was begun by the service of a summons 3 (or summons and complaint) upon , 4 on the day of , A. D. 18 . 5 The summons, complaint, answer, and order of refer- 6 ence are included in the judgment roll hereto annexed, 7 which forms part hereof. 8 {If changes were Tnade iii the parties state them.) 9 The issues herein, in pursuance of said order of ref- 10 erence, came on to be tried before said 11 , sole referee herein, on the day of 12 , A. D. 18 , and subsequent days, when, the 13 referee, having taken the statutory oath, {or the oath of 14 the referee having heen duly waived), the following pro- 15 ceedings were had and taken : 16 The plaintiff offered in evidence, to maintain the is- 17 sues on his part the following instrument, {insert thepa- 18 per offered). Defendant objected on the ground {state 19 grounds of objection). The objection was overruled, and 20 the defendant excepted. • 21 Plaintiff then called as a witness 22 , who, being duly sworn, testified as 23 follows : 24 Q. {Insert question.) 25 Defendant objected to the question on the ground 26 that {insert ground of ohjection). 27 The objection was overruled, and defendant excepted. 28 Answer. {Insert so much of the answer as is necessary 29 to raise the question of law) 30 Being cross-examined the said 31 testified as follows : {Insert so much oftestiviony 246 LAW OF BEFEEEES. 1 as is necessary to raise the question of law.) 2 Plaintiff then rested. 3 Defendant moved to dismiss the complaint on the 4 grounds (state grounds of m,otion). 5 The motion was denied, and defendant excepted. 6 Defendant called to maintain the issues on his part, 7 who, being sworn, testified as follows : 8 Q. [Insert question^ 9 Plaintiff objected to the question on the grounds, {state 10 grounds of objection). 11 The objection was sustained, and defendant excepted. 12 Defendant then rested. 13 Defendant moved for judgment on the grounds, (state 14 grounds). 15 The motion was denied, and defendant excepted. 16 (// requests to find were served insert them ; recite the 17 making of the report, etc., as in No. 58.) Amendments are to be made, and the bill of exceptions settled in the same manner as where a case is made and settled. No. 64. GENERAL FORM OF ORDER ON INTERLOCUTORY REFER- ENCE MADE ON MOTION. Caption as in No. 1. > On reading and filing the affidavits of (recite pap&rs used on motion) and notice of motion, after hearing, , Esq., of counsel for , in favor of said motion, and , Esq., of counsel for , opposed. On mo- tion of , attorney for , it is ordered, etc., with dollars costs of said niotion. FOBMS. 247 No. 65. GENERAL FORM OF ORDER OK INTERLOCUTORY REFER- ENCE MADE BY THE COURT OF ITS OWN MOTION. Caption as in No. 1. > This cause coming on to be tried at a special term of this court, before Hon. , a justice thereof, and it appearing to said court that {state reason why reference is ordered) is necessary to enable the court to ren- der a proper judgment thereon, {or for the information of the court,) after hearing counsel for the respective parties, it is ordered that it be referred to Esq., to {state ohject and scope of reference). No. 66. SUMMONS TO ATTEND BEFORE REFEREE. Title of the Cause. > By virtue of an order made in the above entitled action bearing date the day of , A. D. 18 , 1, , the referee appointed by said order, do hereby summon you to appear before me, at my office, No. street, in the of , on the day of , A. D. 18 , at o'clock in the noon, to attend a hearing of the matters in said order named, in reference before me, as such referee, pursuant to said order, and hereof fail not at your peril. Dated, the day of , A. D. 18 . , Eeferee. 248 LAW OP EEFEBEES. UNDEEWKITING WHERE BOOKS AND PAPERS ARE REQUIRED. And you are hereby directed to bring with you, and deposit with me all books of account, bills, notes, documents, and papers in your possession, or under your control, or in the possession of any one in your behalf relating to {state mat- ters as to which accounting is ordered). No. 67. GENERAL FORM OF REPORT ON INTERLOCUTORY REFER- ENCE. Title of the Cause. > To the Court. I, the undersigned referee, duly appointed by order of this court bearing date the day of , A. D. 18 , to {give epitome of order), do hereby report : I. I have taken the statutory oath which is hereto an- nexed, {or the oath of the referee was waived as appears by the stipulation hereto annexed). II I have summoned the several parties to appear and attend before me on this reference, as appears by the sum- mons hereto annexed marked Schedule " A." III. I have been attended by {state appearances). IV. I have heard the testimony of the parties and wit- nesses produced before me, which said testimony is here- unto annexed, marked Schedule " B." {If the order was to ascertain the facts, add^—) V. And I do find the following to be the facts : 1. I find as matter of fact, 2. I find as matter of fact, {If the referee is directed to report with his opinion, add after the findings of fact — ) VI. I am therefore of the opinion that, etc. FORMS. 249 No. 68. AFFIDAVIT OF PRODUCTION OF BOOKS AND PAPERS. Caption as in No. 5. > A. B., the defendant, {or plaintiff) in this action, being duly sworn, deposes and says : I. That the books and papers, of Tvhich a schedule is hereto annexed marked " A," are all the books, documents, and papers in his possession or under his control, or in the possession or under the control of any person for his bene- fit or use, relating to the matters in difference in this ac- tion or called for by the subpoena herein {or ordered to ie produced hy the referee herein. If any are excepted for any reason, as ieing lost, etc., add) except {naming them), which have been {lost or destroyed) as the case may be. Jurat. Signature. No. 69. CERTIFICATE OF NON-PRODUCTION OF BOOKS AND PAPERS. Title of the Cause. > To the Court. I, the undersigned referee herein appointed by an order bearing date the day of , A. D. 18 , to {state contents of order) hereby certify that the above-named defendant, {or other person) was duly directed to produce before me all books, documents, and papers in hi-s posses- sion or under his control relating to the matters in differ- ence in this case, and to the accounts directed to be taken herein. Due proof of the service of the summons {or order, or subpoena) upon the said defendant {or other person) has been made before me. The said defendant has not pro- duced before me such books, documents, and papers, or any such. AH which is hereby certified and submitted. Dated, , A. D., 18 . , Referee. 250 LAW OP REFEREES. No. 70. ORDER OF REFERENCE TO TAKE AND STATE AN ACCOUNT. Caption as in No. 1. > On reading and filing the affidavits of , and , and on all the pleadings and proceedings in this cause, It is ordered that it be referred to , Esq., as sole referee, to take and state an account of all dealings between the said plaintiff and defendant relating to {state matters as to which account is to he taken), and for the purpose of taking said account the parties are directed to produce before said referee all books, papers, docu- ments, and writings in their custody or under their control having reference thereto ; that the said parties may be ex- amined in reference thereto in such manner as the referee shall direct. The said referee shall make all just allow- ances to the parties as between themselves, and state what, from said account, appears to be due from one party to the other, and shall also state his reasons for the allowance or disallowance of any claim by each against the other {insert any other directions deemed necessary. j.f the account is to he taken hefore trial add) and on the coming in of said report either party may bring the case to trial. And it is further ordered that the question of costs, and all other questions are reserved until the coming in of said report and the final hearing of this cause. FORMS. 251 No. 71. REPORT OF REFEREE TO TAKE AND STATE AN ACCOUNT. Title of the Cause. > To the Court. I, the undersigned referee, duly appointed by order of this court bearing date the day of , A. D. 18 , to (give an epitome of the order) do hereby report : I. I haye taken the statutory oath, which is filed here- with, {or the oath was waived as appears hy the stipulation filed herewith). II. I have summoned the several parties to appear and attend before me, as appears by said summons hereto an- nexed, marked Schedule " A." III. I have been attended on said reference by {state ap- pearances). IV. I have heard the proofs and allegations and taken the testimony of the parties and witnesses which has been subscribed by them, and it is hereto annexed marked Schedule "B." V. I have adjusted a mutual account between the parties hereto, making all just allowances and showing what, on striking a balance, appears to be due from each party to the other, which said account is hereto annexed marked Schedule "D." VI. The said is indebted to the said , in the sum of dollars, with interest from {date of the account), etc. Dated, , A, D. 18 . , Referee. 252 LAW OF BEPEBEES. No. 72. APPIDAVIT TO OBTAIN REFERENCE TO TAKE DEPOSITION TO BE USED ON MOTION. Caption as in No. 5. I. He is tlie plaintiff {or defendant) in the above entitled action. He intends to make {or oppose) a motion in this cause, for {state oiject of motion), of which notice has been given. II. On said motion it will be necessary for this deponent to have the affidavit of A. B. as to the following facts which, this deponent is informed and verily believes, are within the personal knowledge of said A. B., viz.: {state facts desired to he hrought out). III. The reasons why such affidavit is necessary are {state reasons). IV. The said A. B. refuses to make such affidavit al- though one {einbodying the facts desired) has been drawn and presented to him, with a request for verification at no cost to him, nor did he deny his knowledge of the facts de- sired. V. The said A. B. resides {or has a place of business) at street, in the of VI. That no previous application for an order to take the deposition of said A. B. has been made. Jurat. Signature. FOBMS. 253 No. 73. ORDER APPOINTING REFEREE TO TAKE DEPOSITION OF A PARTY TO BE USED ON MOTION. Caption as in No. 1. > On reading and filing tlie affidavit of , showing that a motion is about to be made, {or has been made in this court), and tliat the affidavit of is necessary thereon, and said has refused to make said affidavit, on motion of attorney for plaintiff (or defendant) it is ordered that , Esq., be and he hereby is ap- pointed to take the affidavit of said , pursuant to section 885 of the Code of Civil Pro- cedure. {If the deposition is not to he delivered to the attorney of the party add — )It is further ordered-that said deposition, when taken, is to be {state what disposition is to he made thereof^ No. 74. REPORT OF REFEREE TO TAKE DEPOSITION TO BE USED ON MOTION. Deposition of , taken to be used on a motion made in this cause for {state nature of motion), taken before the undersigned, pursuant to an order of this court made herein on the day of , A. D. 18 , of which a copy is hereto annexed. Title of the Cause. State of New York, County of being duly sworn, deposes and says, {or Q. insertiny ques- tion; A. inserting answer). Sworn to before me, this day of A. D. 18 . Signature of witness. , Eeferee. ss. 254 LAW OF BEFEEEES. No. 75. ORDER APPOINTING REFEREE TO EXAMINE PARTY BEFORE TRIAL. Title of tlie Cause. On reading and filing the affidavit of , and on motion of , attorney for , It is ordered that the said , in said affidavit named, appear before , who is hereby appointed referee to take the deposition of said before trial, at the office of said referee, No. street, in the of , on the day of , A. D. 18 , at o'clock in the noon, to be examined under Article 1, Title 3, Chap. IV. of the Code of Civil Procedure. It is further ordered that said shall be examined only as to (state matters as to which the examination is limited). It is further ordered that a service of a copy of this or- der upon the said , on or before the day of , A. D. 18 , shaU be suf- ficient. (If the person to Tje examined is confined in p?ison or jail, add) — And it is further ordered that the person in charge of {7iaming jail or prison) produce said , at said prison (or jail) subject to the foUow- ing conditions, (state restrictions and regulations). Dated, , A. D. 18 . FOEMS. 255 No. 76. ORDER OF REFERENCE TO TAKE PROOF ON DEFAULT "WHERE SUMMONS WAS SERVED BY PUBLICATION. Caption as in No. 1. > On the summons and complaint herein, and on the affi- davit of , verified the day of A. D. 18 , reciting the proceedings herein, and on motion of , attorney for plaintiff, it is ordered that it be referred to , Esq., counsellor at law, to take proof of the matters alleged in the complaint, {or other subject of inquiry^ and to examine the plaintiff, or his agent, on oath, respecting any payment made to said plain- tiff, or to any one for his use, and to report to this court vrith all convenient speed. No. 77. ORDER FOR THE EXAMINATION OF AN EXPECTED PARTY. In the matter of the application of A B to take and perpetuate the tes- timony of On the affidavit of hereto annexed, and on motion of , attorney for said A. B., it is ordered that the said appear before , the referee hereby appointed to take the examination of said , at his office, No. street, in the of , on the day of A. D. 18 , at o'clock in the noon, and be examined as to (state limits of examination). 256 LAW OP REFEREES. ijf the 'person to he examined is in custody add — ) It is further ordered that said be brought before said referee, at such jail {or prison), under the following conditions {state conditions). It is further or- dered that service of this order on said , on or before the day of A. D. 18 , shall be sufficient. Dated, , A. D. 18 . ; No. 78. CERTIFICATE OF REFEREE TO DEPOSITION OF PARTY OR EXPECTED PARTY. Title of the Cause or Proceeding {as in No. 11). Deposition of , taken by , referee, under the provisions of Chap. IX., Tit. III. of the Code of Civil Procedure, un- der the annexed order, on the day of , A. D. 18 , and on the adjourned days, , Esq., appearing for , and , Esq., appearing for Said ■was first duly sworn by , ref- eree, and on examination by testified as follows : Q. A. And on cross-examination testified as follows : Q. A. I, , referee, appointed by the annexed order to take the examination of , do hereby certify that the foregoing deposi- FORMS. 257 tion was taken before me under the provisions of the an- nexed order at the times in the said depositions set forth, that every answer of said , on such examination is fully set forth, as required by either party. I carefully read said deposition to said , and he then subscribed the same in my presence. Dated, , A. D. 18 . , Eeferee. No. 79. NOTICE OF MOTION FOR REFERENCE TO ASCERTAIN DAM- AGES ON INJUNCTION. Title of the cause. > Sirs: You will please take notice, that on the undertaking given herein, and on all the pleadings and proceedings in this cause, a motion will be made at a special term of this court to be held at the , in the of , on the day of , at o'clock, m., of that day, or as soon thereafter as counsel can be heard, for a reference to ascertain the damages sustained by the {plaintiff, or defendant) by reason of the injunction granted herein on the day of , A. D. 18 , and for such further or other order as may be just, and for the costs of this motion. Date. Signature. Address. 258 LAW OF KEFEEEES. No. 80. ORDER OF REFERENCE TO ASCERTAIN DAMAGES CAUSED BY INJUNCTION. Caption as in No. 1. > On reading and filing notice of this motion, and on all the pleadings and proceedings in this cause after hearing , Esq., of counsel for , in favor of said motion, and , Esq., of counsel for , in opposition thereto, on motion of , Attorney for , It is ordered that it be referred to , Esq., counsellor at law, to ascertain the damages caused to by said injunction, and to re- port the same to this court, (if the sureties are to he notified add) — and that days notice of hearing be given to the sureties on said undertaking. No. 81. ORDER APPOINTING A REFEREE TO NOMINATE A RECEIVER. Upon reading and filing the afiidavits of , verified the day of , and notice of a motion, and upon all the pleadings and proceedings in this cause, after hearing , Esq., of counsel for the in favor of said motion, and , Esq., of counsel for in opposition thereto, on motion of , attorney for said It is ordered that a receiver be appointed of [name prop- erty). And it is further ordered that it be referred to , Esq., counsellor at law to report a suitable person to be appointed such receiver, to report the amount of security to be given by him, and the names and responsibilities of the sureties proposed. FOBMS. 259 No. 82. SUMMONS TO ATTEND ON REFERENCE TO APPOINT RECEIVER. Title of the Cause. > To Sir: You are hereby notified to attend before the undersigned referee, appointed by order bearing date the day of , A. D. 18 , to appoint a receiver in this cause, at his office. No. street, in the city of , on the day of , at o'clock, . m., when he will receive proposals for a receiver under said order, a copy whereof has been served upon you. {If personal attendance of a party is required for examin- ation add) — the personal attendance of [defendant or plain- tiff) is required for examination. Date. Signature of Eeferee. Signature of moving party's attorney. Address. No. 83. PROPOSAL OF NAMES FOR RECEIVER. Title of the cause. > The above.-named plaintiff {or defendant) proposes , of , for receiver of {recite property named in the order) mentioned in the or- der of this court, bearing date the day of , A. D. 18 , and the said proposes , and , as his sureties. Dated, , A. D. 18 . Signature. To , Eeferee. 260 LAW OF EEFEKEES. No. 84. KEFEREE'S REPORT NOMINATING RECEIVER. Title of tlie Cause. > To the Court. Pursuant to an order of this court, duly made herein, bearing date the day of , A. D. 18 , whereby the undersigned was directed to nominate a suit- able person to be appointed receiver of (specify property named in the order), and to ascertain the proper security to be given by him, I , the referee named in said order, respectfully report ; I. I caused motion of hearing to be served on the sev- eral parties hereto as appears by Schedule A. hereto an- nexed. II. I have been attended on said reference by counsel for the 'respective parties as follows : , Esq., appearing for , , Esq., appearing for , {if any failed to appear add) — failing to appear pursuant to said notice. III. That was proposed on behalf of plaintiff, and on behalf of defendant ; and upon examination, and hear- ing of counsel it appeared that said was better qualified to execute the duties of the receiver- ship, and I therefore nominate him as a suitable person to be appointed such receiver. IV. That the amount of security that should be given by said receiver should be dollars, that said proposed as his sure- ties , of , and , of , and being satisfied by their afiidavits and other proof that they were each of them worth the sum of FOEMS. 261 dollars over and above all their debts and liabilities, and property exempt from levy and sale under execution, I approve and recommend them as such sureties. V. That the said , and , and , as sureties jointly and severally executed a bond in the usual form to the people of this state in the penalty of dollars, conditioned for the faithful discharge by the said of his duties as receiver aforesaid, which said bond appears to me sufficient in form and substance, which is herewith submitted, marked Schedule B. Schedule C hereto annexed contains the evi- dence and other proceedings on said reference. Date. , Eeferee. No. 85. ORDER OF REFERENCE TO APPOINT A RECEIVER. Caption as in No. 1. > On reading and filing the affidavit of , and , verified the day of , A. D. 18 , and notice of motion and on all the pleadings and proceedings in this cause, after hearing , of coun- sel for , in favor of said motion, and , of counsel for in opposition thereto, on motion of , attorney for said It is ordered that , Esq., counsellor at law, be, and he hereby is, appointed referee 262 LAW OF REFEEEES. to appoint a receiver of (specify carefully the property'), and that such referee take from such receiver security for the faithful performance of his duties as such, viz., a bond to the people of this state in the sum of dollars, with two or more sufficient sureties to be approved by said referee, and file the same with the clerk of (this court or the court of) And it is further ordered, that upon filing of said bond, and the referee's report, such receiver shall have the usual powers, and perform the usual duties of receivers of this court, and shall have power (enutnerate any special powers and duties imposed upon Mm.) And it is further ordered that thereupon the said , deliver to such receiver the property named herein, on demand of such receiver. No. 86. EEFEREE'S REPORT OP APPOINTMENT OF RECEIVER. 1 Title of the Cause. > To the Court. Pursuant to an order of this court, duly entered in this action on the day of , A. D. 18 , whereby it was referred to the undersigned to appoint a receiver of (insert description of the property as given in the order), and take from such receiver the proper security, I, , the referee therein named, do hereby report. I. I have caused a summons to attend on the hearing be- fore me in the matter of such appointment as appears by Schedule A, hereto annexed. FOKMS. 263 II. That I have been attended on such reference by , attorney and of counsel for said , and by , attorney and of counsel for said {or hy hoth or all parties), and thereupon proceeded with the matters re- ferred to me. III. That I ascertained by the testimony of , and , that the value of said property was dollars. IV. That , of was proposed on the part of , and , on the part of , and , was proposed on the part of V. On examination it appeared to me that was best qualified for receiver, and I there- fore have appointed him as such receiver. VI. The said , proposed as his sureties , and , and being satisfied by their examination that they were duly qualified to act as sureties, I have ap- proved of them as such. VII. That the said , as prin- cipal, and the said , and , as sureties, thereupon jointly and severally executed a bond in the usual form to the people of this state in the penalty of dollars, conditioned for the faithful discharge of his duties as such receiver by the said VIII. That I have caused the said bond, with my ap- proval thereon, and the justification of the sureties, to be duly filed in the ofiice of the clerk of this court, {or the court of) IX. Schedule B, hereto annexed, contains the evidence taken on said hearing. All which is respectfully submitted. Date. Signature. 264 LAW OF REFEKEES. * No. 87. ORDER APPOINTING REFEREES ON APPEAL FROM COM- MISSIONER OP HIGHWAYS. . Title of the Proceeding. > Whereas, , of the town of , county of , in the State of New York, did, on the day of , A. D. 18 , appeal to me, th6 undersigned county judge of said county, from the determination of , commissioner of highways in said town of , made in his order filed herein on the day of , A. D. 18 , and from so much of said order and determination as (recite part appealed from). Now, therefore, pursuant to the statute in such case made and provided, I do hereby appoint , of the town of , and , of the town of , and , of the town of , all residents of said county of , referees, to hear and determine said appeal. Dated, , A. D. 18 . , County Judge. No. 88. ORDER APPOINTING REFEREES ON APPEAL FROM COM- MISSIONER OF HIGHWAYS WHEN COUNTY JUDGE IS DIS- QUALIFIED. Title of the Proceeding. > "Whereas, , of the town of , county of , and state of New York, did, on the day of , A. D. 18 , appeal to the county judge of said county, FOEMS. 265 from tlie determination of , commissioner of highways of said town of , made in his order filed herein on the day of , A. D. 18 , and from so much of said order and determin- ation as {recite part appealed from), and whereas said county judge resides in the said town of , {or state other statutory disability), Now, therefore, pursuant to the statute in such case made and provided, I do hereby appoint , of the town of , and , of the town of , and , of the town of , all residents of said county of , referees, to hear and determine said appeal. Dated, , A. D. 18 . , Justice of the Sessions. No. 89. NOTICE TO EEFEREES OP THEIR APPOINTMENT. Title of the Proceeding. > Sirs: Tou wiU please take notice that by the order which is hereto annexed you have been duly appointed, in pursuance of the statute in such case made and provided, as referees, to hear and determine an appeal made by , from the order and determination of , commissioner of highways for the town of , and county of , as appears by his order bearing date the day of , A. D. 18 , and filed on the day of ,a;d. 18 . You will also take notice that the papers herewith en- closed and delivered are aU the papers related to the mat- ters referred. Dated, , A. D. 18 . County Judge. To {naming referees). 266 LAW OF BEFEBEES. No. 90. NOTICE BY EEFEREES TO COMMISSIONER OP HIGHWAYS. 1 Title of the Proceeding, Sir: ■\ You will please take notice that by an order duly made herein on the day of , A. D. 18 , we have been appointed referees to hear and determine the appeal made and taken by , of the town of , in the county of , from the determination made by your order bearing date the day of , A. D. 18 , in {state cause of appeal), and that a hearing before us wiU be held at the of- fice of , in the town of , county of , on the day of , A. D. 18 , at o'clock in the noon, to determine said appeal. Yours, etc. Dated, , A. D. 18 . To Eeferees. Commissioner of Highways. No. 91. NOTICE OF HEARING TO APPELLANT ON APPEAL FROM COMMISSIONER OP HIGHWAYS. Title of the Proceeding. > Sir: You will please take notice that the hearing on your ap- peal from the determination of commissioner of highways roEMS. 267 of the town of , will be had at the office of , in the town of , on the day of , A. D. 18 , at o'clock in the noon. Dated, , A. D. 18 . , Eeferee. To , Appellant. No. 92. SUBPfENA BY EEFEREES ON APPEAL FROM COMMISSIONER OP HIGHWAYS. The people of the state of New York. To , Greeting: Ton and each of you are hereby directed and commanded to appear before us at the office of , in the town of , in the county of , on the day of , at o'clock in the noon, there to give evidence and testify in the matter of the appeal of , from a determination of , com- missioner of highways for said town of , on the part of said {appellant or commissioner). Witness our hands this day of ,A. D. 18 . Referees. 263 LAW OP BEFEBEES. No. 93. REPORT AND DECISION OP REFEREES ON APPEAL FROM COMMISSIONER OF HIGHWAYS. Title of tlie Proceeding. > "Whereas, on the day of , A. D. 18 , an appeal was duly had and taken by , of the town of , and county of , to the county judge of said county of , from the order and determination of , commissioner of highways of said town of , set forth in his order made on the day of , A. D. 18 , and duly filed on the day of , A. D. 18 , copies of which said appeal and order are hereto annexed. And whereas by an order duly made by , county judge {or justice of the sessions of county), the undersigned were duly appointed referees to hear and determine said appeal, now we , and , and referees so appointed, do hereby report : I. Pursuant to said order of reference, and pursuant to notice to said commission and to said appellant, we at- tended at the office of , in the town of , and county of , on the day of , A. D. 18 , at o'clock in the noon, and proceeded to hear the al- legations and proofs of the parties. II. After such hearing and due deliberation had thereon, we do hereby decide and determine, that the said appeal of the said , should be dis- missed, and that the order of said , commissioner of highways, should be, and the same hereby is, in all respects, affirmed. Dated, , A. D. 18 . Referees. FOKMS. 269 No. 94. AGREEMENT TO REFER A DISPUTED CLAIM. In the matter of the claim of against The estate of , late of , deceased, , having presented a claim against the estate of , late of , deceased, to , executor (or ad- nministratoi-) of said estate, and the said , executor as aforesaid, having rejected said claim upon the grounds that (state reasons in full), we the said (claimayit) and , executor as aforesaid, pursuant to the statute in such case made and provided, do hereby agree that said claim be referred to , a disinterested person, to hear and determine the same. Dated, , A. D. 18 . , Claimant. , Executor. No. 95. SURROGATE'S APPROVAL TO BE ENDORSED ON AGREEMENT TO REFER. I, , surrogate of the county of , hereby approve of the referee named in the within agreement. Dated, , A. D. 18 . , Surrogate. 270 LAW OF EEFEEEES. No. 96. ORDER REFERRING DISPUTED CLAIM. Title as in 92. > On reading and filing the agreement between the above named , claimant, and , executor, and the approval of the surrogate of the county of , endorsed thereon, on motion of , at- torney for , Ordered that the said claim be, and the same hereby is, referred to , to hear and determine. Dated, , A. D., 18 . , Clerk of the county of No. 97. ORDER OP REFERENCE ON APPLICATION TO MORTGAGE, LEASE, OR SELL THE REAL PROPERTY OF AN INFANT. Title of the Proceeding. On reading and filing the petition of , and on all the proceedings on this application, on motion of , attorney for , it is ordered that it be re- ferred to , Esq., counsellor at law, to examine into the truth of the allegations of the pe- tition, to hear the allegations and proofs of all persons in- terested in the property, or otherwise interested in the application, and report his opinion thereupon, together with the testimony, with all convenient speed. FORMS. 271 No. 98. REPORT OF REFEREE ON PROCEEDINGS TO MORTGAGE, ETC., REAL ESTATE OF AN INFANT. Title of the Proceeding. > To the Court. I, , the referee duly ap- pointed by order of this court, bearing date the day of , A,. D. 18 , to {ffive epitome of order) do hereby report : I. I have taken and subscribed the statutory oath which is hereto annexed. II. I have been attended by the Counsel for the respect- ive parties, , appearing for the petitioner, and , appear- ing for , and have heard all the proofs and allegations of all persons interested in the property, or in the apphoation. The proofs taken by me are hereto annexed, marked Schedule "A." III. I find that the said infant (or lunatic, etc.) is the owner of (or is entitled to a share in) the following real prop- erty, to wit : 1. A house and lot situated on street, in the city of , of the value of dollars ; said property is encumbered by {state nature and atnomit of encumbrance), and yields a net revenue of dollars ^er annum, (or is wholly unproductive). 2. Four vacant lots (describe property as above). IV. I find that the proceeds of said property are wholly insufficient for the comfortable support, education, and maintenance of said infant (or lunatic). V. I further find that , mother of said infant, is entitled to a dower in said prem- ises, that in the event of sale of said premises she is willing to accept a gross sum in lieu thereof, and that the value of 272 LAW OF EEFEEEES. said life estate, computed under the Northampton tables is {If there is any other outstanding life estate, or estate for years, recite the fact). VI. I am of the opinion that it would be for the benefit of said infant to sell {or mortgage, or lease) said premises, {or a part, describing it), for the following reasons {state reasons fully). VII. I am further of the opinion that such sale should be made under the following conditions : So much of the purchase-money as is necessary to dis- charge the encumbrances on said premises, including the gross sum in lieu of dower to , the mother of said infant, and the costs and expenses of the^e proceedings, to be paid in cash on the delivery of the deed, and the balance of the purchase-money remain on bond and mortgage on the premises to be given to the county treasurer of county, interest to be paid semi-annually, at the rate of per cent., and the principal when said infant shall arrive at the age of twenty- one years. All of which is respeetfvilly submitted. Dated, , A. D. 18 . , Eeferee. No. 99. ORDER CONFIRMING REPORT OF REFEREE ON PROCEEDINGS TO SELL REAL ESTATE OF INFANT. Caption as in No. 3. > On reading and filing the report of , the referee duly appointed herein by order bearing date the day of , A. D. 18 , and on all the proceedings in this application, whereby it ap- pears that a sale {or mortgage, or lease) of the real property FOEMS. 273 [or the interest therein), of said infant would be for the ben- efit of said infant, on motion of , attorney for said petitioners, it is ordered that said rej)ort be, and the same is hereby in all respects confirmed. And it is further ordered, that , special guardian of said infant be, and he hereby is, au- thorized, empowered, and directed to sell {or mortgage, or lease) said real estate of said infant, at not less than the price, and upon the terms and conditions in said report of said referee stated and specified. And it is further ordered {state further directions as to sale, etc.) And it is further ordered, that before such sale {or mort- gage, or lease) the said , special guardian as aforesaid, make an agreement therefor, subject to the approval of this court, and report such agreement to the court under oath. No. 100. ORDEE APPOINTING REFEREE TO EXAMINE JUDGMENT DEBTOR. Caption as in No. 2. > It appearing to my satisfaction by the afiidavit of , the judgment creditor {or attorney for the judgment creditor) herein, that on the day of , A. D. 18 , judgment was recovered in an ac- tion in the court by , against , for the sum of dollars, that such judgment was recovered upon personal service of the summons upon the said , judgment debtor herein, that a trans- cript of said judgment was duly filed, and said judgment was duly docketed in the office of the county of , that execution against the property of said 274 LAW OF EEFEREES. judgment debtor was, on the day of A. D. 18 , duly issued to the sheriff of the county of , where said judgment debtor then resided, and still resides, that on the day of , A. D. 18 , the said execution was returned wholly unsatisfied, and said judgment remains wholly due and unpaid, I do hereby or- der and require the said , judgment debtor as aforesaid, to appear before , who is hereby appointed referee to take the said examination on the day of , A. D.18 , at o'clock in the noon, at his office No. street, in the of , to be examined concerning his property. And the said , judgment debtor as aforesaid, is hereby forbidden to sell, transfer, or make, or permit any other disposition of, or interference with any of his prop- erty not exempt by law from execution until further order in the premises. Dated, , A. D. 18 . No. 101. OATH OF REFEREE TO TAKE EXAMINATION IN SUPPLE- MENTARY PROCEEDINGS. Title of the Cause. > I, , the referee appointed by order bearing date the day of , A. D. 18 , to take the examination of herein, do swear that I will faithfully discharge my duty as such referee, and make a full, true, and just re- port thereon, according to the best of my understanding and ability. Jurat. Signature. POEMS. 275 No. 102. REFEREES REPORT OF EXAMINATION IN SUPPLEMENTARY PROCEEDINGS. Title of the Cause. ^ To ^> , the referee duly ap- pointed by order bearing date the day of A. D. 18 , to take the examination of , judgment debtor herein, which said order is hereto annexed, do hereby certify and report : I. I have taken and subscribed the statutory oath, which is hereto annexed. II. The said duly ap- peared before me pursuant to the above order with his counsel, , Esq., , Esq., appearing for III. The said , being first duly sworn, on his direct examination by , testified as follows : (If the parties insist, insert every question and answer, if not, the testimony may ie taken in narrative form.) And on cross-examination by , said , testified as follows : {As above.) IV. I do further certify that every answer or declaration made by said , on such ex- amination, is inserted herein, that after such examination was completed the same was carefully read over to the said , who thereupon subscribed the same in my presence. All which is respectfully sub- mitted. Dated, , A. D. 18 . , Eeferee, 276 LAW or EEFEEEES. No. 103. ORDER FOR THE EXAMINATION OP WITNESSES AND OF BOOKS. ETC., UNDER SECTION 31 OF THE ASSIGNMENT ACT. Court. In the matter of the assignment of to , for the benefit of creditors : On reading and filing the petition of , verified on the day of , A. D. 18 , and on motion of , at- torney for tlae petitioner, it is ordered that {give names of witnesses to he examined), be and appear before , the referee hereby appointed, at his No. street, in the of , on the day of , A. D. 18 , at o'clock in the noon, and there and then be examined as to (state matters as to which the examination is to he Tnade). And it is further ordered that said (state name of witness hy whom, hooks are to he produced) bring and produce for examination before said referee, the following books and papers (name each hook or paper required') Dated, , A. D. 18 . No. 104. OATH OF REFEREE IN PROCEEDINGS UNDER THE ASSIGN- MENT ACT. Title of the Proceeding. > I, , the referee appointed by order bearing date the day of A. D. IS , to (state ohject of reference), do hereby swear that I roEMS. 277 will faitlifuUy and fairly discharge my duty as sucli referee, and make a just and true report {or return) of the proceed- ings on such reference, acccording to the best of my under- standing and ability. Jurat. Signature. No. 105. CERTIFICATE OF REFEREE TO EXAMINATION OF WITNESSES AND EXAMINATION OF BOOKS, ETC., UNDER SECTION 21 OF THE ASSIGNMENT ACT. Title of the Proceeding. > I, the undersigned referee, duly appointed to take the examination of witnesses in these proceedings, by order bearing date the day of , A. D. 18 , which said order is hereto annexed, do hereby certify that I have been attended on such examination by the petitioner, and by , his counsel, by (naming witnesses), and by , their counsel. I do further certify that {naming party producing) pro- duced before me the following books and papers {naming them). Before proceeding with the reference I took and sub- scribed the statutory oath, which is herewith filed. , a witness named in said order being duly sworn, testified as follows : {If the par- ties request, the testimony must he taken hy question and an- swer. If extracts are tahen from hooks the hooks must he carefully identified, and pages given.) I further certify that every answer or declaration made by said witnesses, or either of them, is inserted, that after such examination of each of said witnesses was completed the same was carefully read over to him, and he, in my presence, subscribed his name thereto. 278 LAW OF EEPEEEES. I further certify that each extract from books or papers ■was carefully compared by me with said book or paper, that the same was correctly transcribed, and were taken from the books at the places where they purport to be found. Dated, , A. D. 18 . , Eeferee. No. 106. ORDER REFERRING- DISPUTED CLAIM UNDER SECTION 36 OF THE ASSIGNMENT ACT. Caption as in No. 3. > On reading and filing the petition of , verified on the day of , A. D. 18 , whereby it appears that has presented a claim against said estate, which is disputed by the assignee ; now on motion of , attorney for , It is ordered that the said claim, and all the issues therein be, and the same hereby are, referred to , Esq., as sole referee, to hear and determine the same. No. 107. REPORT OF REFEREE OF DISPUTED CLAIM UNDER ASSIGN- MENT ACT. Title of the Proceeding. > To the Court. I, the undersigned referee, duly appointed herein by FORMS. 279 order bearing date tlie day of , A. D. 18 , to hear and determine tlie disputed claim of , against tlie estate of , do hereby report : I. I haye taken and subscribed the statutory oath which is hereto annexed (or the oath was duly waived as hy stipu- lation hereto annexed). II. I have been attended by the parties and their coun- sel, , appearing for , and , Esq., appearing for , have heard the allegations and proofs of the parties, and the ar- guments of counsel thereon. III. I find as matters of fact : 1. 2. and as a conclusion of law that there is due from said es- tate to , the petitioner herein, the sum of doUars, and interest thereon from the day of A. D. 18 , for which said sum I order judgment with costs. of , A. D. 18 . , Eeferee. No. 108. ORDER REFERRING ACCOUNT OP ASSIGNEE UNDER THE ASSIGNMENT ACT. Caption as in No. 3. > , the assignee of the above named assignor, having, on the day of , A. D. 18 , duly filed his account as such assignee, and a citation having been duly issued requiring all persons in- terested in said assigned estate to appear on the final set- tlement of said account, 280 LAW OF EEFEEEES. on said account so filed, and on all the proceedings herein, on motion of , attorney for It is ordered that it be referred to , Esq., as sole referee to take and state said account, and to examine parties and witnesses on oath in reference thereto. It is further ordered that said referee take proof and re- port as to who are entitled to share in the distribution of said estate, and the priority and proportion of each. It is further ordered that any party or creditor may con- test any claim presented before said referee, and the said referee shall thereupon take proof and report upon (or hear and determine) the validity of said claim. It is further ordered that days notice shall be given to all creditors whose claims have been presented, or who appeared on the return of the citation. No. 107. REPORT OP REFEREE ON THE ACCOUNT OF AN ASSIGNEE UNDER THE ASSIGNMENT. Court, In the matter of the accounting of Assignee of To the Court. I, the undersigned referee, duly appointed by order bearing date the day of ■ , A. D. 18 , to take and state the account of , the assignee above named, do hereby report : I. I have taken and subscribed the statutory oath which is hereto annexed. II. I have been attended on said hearing by (state ap- FOKMS. 281 pearances fully, whether in 'person or hy attorney), have heard the allegations and proofs of the respective parties and the arguments of counsel thereon. III. I find that said , assignor herein, was, prior to the day of , A. D. 18 , engaged in business at , and that on said last mentioned day, he made, executed, duly acknowledged, and delivered an instrument in writing and under seal, wherein and whereby he assigned all his property and estate to , the above named assignee, for the benefit of his creditors. IV. The said , assignee as aforesaid, duly joined in the execution and acknowledgment of said assignment, and accepted said trust, and the same, so excuted, acknowledged, and accepted, was, on the day of , A. D. 18 , duly recorded in the office of the clerk of the county of V. The following preferences were created by the said assignment (state them fully). VII. On the day of , A. D. 18 , , assignor {or assignee) of said as- signed estate, pursuant to the statute in such case made and provided, duly verified and filed in the ofiice of the clerk of this court, schedules of the assigned estate, wherein and whereby it appeared that the liabilities of the said as- signor were $ , that the nominal value of the as- sets was $ , that the actual value of the assets ■was $ , and thereupon the said assignee was, on the day of , A. D. 18 , duly ordered by Hon. > ^ justice of this court, to file a bond pursuant to the statute in such case made and provided, in the penalty of $ , condi- tioned for the faithful performance of his duties. VII. On the day of , A. D. 18 , the said . residing at and 1 residing at duly made, executed, and acknowledged a bond in the pen- alty of $ in accordance with the statute in such 282 LAW OP EEFEBEES. case made and provided, and the same was, on the day of A. D. 18 , duly approved by Hon. , a justice of this court, and on the same day was duly filed in the office of the clerk of this court. VIII. On the day of , A. D. 18 , on petition duly verified by him, the said assignee was, by an order duly made by Hon. , a justice of this court, authorized and directed to advertise for creditors to present their claims, with vouchers, duly verified, in the , a newspaper pub- lished the of , once in each week for six successive weeks. IX. That said advertisement, of which the following is a copy (insert copy), was duly published as directed by said order. X. A copy of such advertisement, enclosed in a sealed envelope, on which was endorsed a direction to return to , attorney at law. No. street, in the of , if not delivered in ten days, was addressed to each creditor whose name appears on the books of the assignor, at the residence, or place of business, therein given, and was on the day of , A. D. 18 , deposited in the post office in the of , and the postage prepaid thereon. Of these only the following {naming them) have been returned. XI. The following persons, and none others, have pre- sented claims, duly verified to the assignee, viz.: {Give names, addresses, amount claimed, amount found due, and for what.)- XII. The said assignee, on the day of , A. D. 18 , presented to this court his account, duly veri- fied, on that day, as follows : Dr. To Stock as inventoried $ " " Accounts $ Increase $ " Cr. By Decrease $ " " Expenses % " Dividends $ Balance $ FOBMS. 283 XIII. On the day of , A. D. 18 , on petition of the assignee, duly Terified, an order was duly made by a justice of this court, directing the issue of a ci- tation to all persons interested in said estate to appear on the final settlement of the accounts of said assignee. Such citation was, pursuant to the statute in such case made and provided, duly issued out of this court, was published as by law required in the , of , and in the , a newspaper published in the of . Said citation was person- ally served upon the following persons {naming them), by delivering to and leaving with each of them a copy thereof, upon all by publication, as required by said order, and by statute, and upon all whose names and address by careful inquiry could be ascertained, by mail as directed in said order, and all the directions in said order contained have been fully complied with. XIV. Objections to said accounts have been filed as fol- lows : {State objections in full, with the name of the party filing the sam,e.) XV. Summons to attend this reference on the day of , A. D. 18 , at my office No. street, in the of at o'clock in the noon, was, on the day of , A. D. 18 , duly issued by me, and duly served upon {give names) the only parties who appeared on the return of the said citation. XVI. After filing and approval of his bond, the said as- signee, in performance of his duties as such, took posses- sion of the assigned estate, as follows : {state fully of what the assignee took possession.) That of said estate he has sold {state ivhat) — Realized therefrom $ What he collected. $ Total receipts $ That he has paid for necessary expenses of administration $ , which said expenditures were justly and prop- erly made, and should be allowed to said assignee. 284 LAW OP KEFEEEES. XVII. I do therefore state tlie account of said assignee as follows : Dr. To Stock as per inventory $ " Accounts " " $ Total $ By decrease in value of stock $ " " accounts $ " expenses $ " payments as per schedule A $ Leaving a balance of $ subject to the costs of this accounting and the commissions of the assignee. The commissions of said assignee amount to $ , leaving in his hands the sum of $ , from which the costs of this accounting are to be deducted. Schedule B hereto annexed contains a statement of those entitled to share in the distribution of said estate, and the priority and proportion of each. Dated, , A. D. 18 . , Eeferee. No. 110. ORDER APPOINTING REFEREE ON ACCOUNTING EST SUR- ROGATE'S COURT. Caption as in No. 3. > , the executor above named having duly filed his account of his proceedings as such executor, and , and , having filed objections thereto, It is ordered that it be referred to , Esq., to take and report the evidence upon the facts in said accounts set forth, and the objections thereto. FORMS. 285 to hear and determine the issues arising on the settlement of said account, and to report thereon, subject to confirma- tion by said surrogate. No. 111. REFEREE'S REPORT ON ACCOUNT IN SURROGATE'S COURT. Title of the Proceedings. > To the Surrogate's Court. I, the undersigned referee to whom, by order of this court, bearing date the day of , A. D. 18 , to {give epitome of order), do hereby report : I. I have taken and subscribed the statutory oath which is hereto annexed. II. I have been attended by the several parties as fol- lows (recite appearances), have heard the allegations and proofs of the several parties hereto, and the arguments of counsel thereon. The testimony taken before me is hereto annexed, marked schedule "A." III. I find that the accounts of said executor as presented by him are in all respects correct, {if incorrect in any par- ticular add " except in the folloioing particulars," viz.) IV. I do further find, from the testimony taken before me, that the said executor has used due diligence in the collection of debts due the estate, and has recovered all that could be collected. {If there are exceptions specify each separately.) V. I find that the stocks, securities, and other personal property of said estate were sold in the usual manner, at public auction, that such sales were properly advertised, that the said execiitor used due diligence in endeavoring to obtain, and did obtain, all that said property was reason- ably worth. 286 LAW OF EEFEEEES. VI. I find that said executor is not accountable for tlie articles marked "exempt" in the inventory filed by him, nor is he accountable for the value of the articles enumer- ated in said inventory as " set apart for the widow," it ap- pearing by said inventory and appraisal that the value thereof does not exceed the sum of three hundred dollars. VII. I find that the charges of said executor for expenses in administering the estate are correct, and should be al- lowed to him. VIII. I find that the total amount received by said exec- utor from all sources is $ ; that the total amount expended for debts, personal expenses, etc., is $ , and there is now in his hands the sum of $ All which is respectfully submitted. Dated, , A. D. 18 . , Eeferee. No. 112. ORDER APPOINTING REFEREE IN PROCEEDINGS TO DIS- COVER DEATH OP LIFE TENANT. Caption as in No. 3. > On reading and filing the petition of , bearing date the day of , A. D. 18 , and proof of due service thereof, and of notice of motion on (name party) , after hearing , of counsel for said petitioner in favor of said motion, and , of counsel for , in opposition thereto, on motion of , attorney for said petitioner. It is ordered that the said , produce before ', who is hereby appointed referee for that purpose, at his office No. street, in the of , on the day of , A. D. 18 , at o'clock in the noon, the said , or in default thereof prove that said is living. FORMS. 287 No. 113. REFEREE'S REPORT ON PROCEEDINGS TO DISCOVER DEATH OF LIFE TENANT. Title of the Proceeding. > To the Supreme Court. I, the undersigned , duly appointed referee herein, by order of this court, bearing date the day of , A. D. 18 , do hereby report : I. I have taken and subscribed the statutory oath, which is hereto annexed. II. I have been attended by the parties and their coun- sel, , appearing in behalf of the petitioner, and appear- ing in behalf of III. I have heard the proofs and the allegations of the parties and their witnesses, which are hereto annexed, marked schedule "A." Each of such depositions was care- fully read by me to the person making the same, and after such reading, the same was duly subscribed by the depo- nent in my presence. IV. I have heard the arguments of counsel on the testi- mony produced, and I do find as follows: {state finding s?i Dated, , A. D. 18 . , Eeferee. No. 114. ORDER APPOINTING REFEREE TO SETTLE ISSUES. Caption as in No. 1. > On reading and filing the affidavits of , and , verified on the day of , A. D. 18 , and notice 288 LAW OP EEFEBEES. of motion, after hearing , of counsel for plaintiff (or defendant) in favor of said mo- tion, and , of counsel for de- fendant {or plaintiff) in opposition thereto, on motion of , attorney for said plaintiff {or defendant), It is ordered, that the issues of fact between the parties to this action be settled before , Esq., who is hereby appointed referee for that purpose. It is further ordered that on such reference all persons entitled to take evidence in said cause be summoned before said referee. No. 115. REPORT OF REFEREE TO SETTLE ISSUES. Title of the cause. > To the Court. . I, the undersigned, duly appointed by order bearing date the day of , A. D. 18 , referee to settle the issues of fact arising on the pleadings in this action, do hereby certify and report : I. All parties entitled to take evidence in this cause were duly summoned to appear before me pursuant to said or- der, as appears by the summons hereto annexed. I have been attended by {recite appearances), and have carefully examined the pleadings herein. II. I have settled the issues to be tried as follows : 1. 2. III. On the trial the plaintiff {or defendant) has the af- firmative on the first interrogatory, the defendant {or phiin- tif) has the affirmative on the second. ' Dated , A. D. 18 . , Keferee. FORMS. 289 No. 116. ORDER APPOINTING REFEREE TO COMPUTE IN FORE- CLOSURE. Caption as in No. 1. > Judgment on failure to answer the complaint filed herein having been ordered against all the defendants in said complaint named, as follows {give names of all defendants), on motion of , attorney for the plaintiff, It is ordered, that it be referred to , Esq., of , to take proof of the facts and circumstances stated in the com- plaint, and to examine the plaintiff or his agent on oath as to any payments which have been made, and to compute and ascertain the amount due on the mortgage set forth in the complaint filed herein, and that he report with all con- venient speed. No. 117. REPORT OF REFEREE TO COMPUTE AMOUNT DUE IN FORECLOSURE. Title of the Cause. > To the Court. I, the undersigned referee, duly appointed by order herein bearing date the day of , A. D. 18 , to compute the amount due to the plaintiff on the mortgage set forth in the complaint herein, do hereby re- port: I. I have taken and subscribed the statutory oath, which is hereto annexed. II. I have taken proof of the facts and circumstances 290 LAW OF EEFEKEES. stated in the complaint herein, have examined the plaintiff (or Ms agent) on oath as to any payments which have been made on account of said bond and mortgage, and have computed and ascertained the amount due on the mort- gage set forth in said complaint, and I do find there is due the plaintiff for principal and interest on said bond and mortgage, at the date of this my report, the sum of dollars. III. Schedule A, hereto annexed, is an abstract of the documentary evidence produced before me on said refer- ence. Schedule B, hereto annexed, is a statement of the amount due. SCHEDULE A. One bond bearing date the day of , A. D. 18 , made and executed by , to , in the penal sum of , conditioned for the pay- ment of the sum of , on the day of , A. D. 18 , with interest at and after the rate of per cent., marked Ex. A. One mortgage bearing the same date as said bond, made and executed by , to , as collateral security for the pay- ment of the amount of money set forth in the condition of said bond, acknowledged on the day of , A. D. 18 , and recorded in the office of the of the county of , on the day of A. D. 18 , marked Exhibit B. SCHEDULE B. Principal of mortgage due S Interest from the day of , A. D. 18 , to the day of , A. D. 18 , at per cent, per annum $ Total $ Dated, , A. D. 18 . , Referee FOBMS. 291 No. 118. TERMS OF SALE IN FORECLOSURE. Title of the Cause. > The premises described in the annexed advertisement of sale, will be sold under the direction of , referee, upon the following terms : 1- per cent, of the purchase money of the parcels sold must be paid to the said referee at the time and place of sale, for which the referee's receipt will be given. 2. The residue of said purchase money must be paid to the said referee at his office No. street, in the of , on the day of , A. D. 18 , at o'clock in the noon, when the said referee's deed will be ready for de- livery. 3. The referee is not required to send any notice to the purchaser ; and if he neglects to call at the time and place specified to receive his deed, he will be charged with inter- est 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. 4. All taxes, assessments, and water rates, which, at the time of sale are liens or encumbrances upon said premises and have not become absolute, will be allowed by the ref- eree out of the purchase money, provided the purchaser shall, previous to the delivery of the deed, produce to the said referee proof of such liens, and duplicate receipts for the payment thereof. 5. The purchaser of said premises, or any portion there- of, must, at the time and place of sale, sign a memorandum of his purchase and an agreement to comply with the terms and conditions of sale, and pay said per cent, of the purchase money. 6. The biddings will be kept open after the property is struck down ; and in case any purchaser shall fail to com- 292 LAW OF EEFEREES. ply with any of the above conditions of sale, the premises so struck down to him will be again put up for sale under the direction of said referee, under the same terms of sale, without application to the courts, unless the plaintiffs at- torney shall elect to make such application ; and such pur- chaser shall 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 pur- chased on the re-sale, alid also for any costs or expenses occurring on such re-sale. Dated, , A. D. 18 . , Keferee. MEMOKANBUM OP SALE. have this day of , A. D. 18 , purchased the premises described in the above annexed printed ad- vertisement of sale, for the sum of and hereby promise and agree to com- ply with the terms and conditions of the sale of said prem- ises as above mentioned and set forth. No. 119. EEFEREE'S DEED IN FORECLOSURE. THIS INDENTUEE, made the day of in the year one thousand eight hundred and , between , a referee in this action as hereinafter mentioned, party of the first part, and (nmne purchaser), party of the second part. Whereas, at a special term of the court, held at , in the of , on the day of , one thousand eight hundred and , it was, among other things, ordered, adjudged, and decreed by said court, in a certain action then pending in said roEMS. 293 court, between (name plaintiffs), plaintiffs, and (name de- fendants), defendants. That all and singular the mortgaged premises mentioned in the complaint in said action, and described in the judg- ment therein, or such part thereof as might be sufficient ''o 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 of Civil Procedure, and which could be sold separately without material injury to the parties inter- ested, be sold at public auction, according to the statute in such case made and provided, and the rules and practice of said court, by or under the directions of the said party of the first part as referee thereby duly appointed for that purpose ; that the said sale shall be made in the county where said mortgaged premises are situated, that the said referee give public notice of the time and place of such sale, according to the statute and the practice of said court, and that any of the parties in said action might become a purchaser on such sale ; that the said referee execute to the purchaser of the said mortgaged premises, or such part or parts thereof as should be sold, a good and sufficient deed of conveyance for the same : And where? s, the said referee, in pursuance of the said judgment and decree of the said court, did on the day of , one thousand eight hundred and , sell at public auction, at the (give time and place of sale) the premises in the said judgment mentioned, due notice of the time and place of such sale having been first given, in accordance with the said judg- ment, at which sale the premises hereinafter described were struck off to the said party of the said part, for the sum of . dollars, that being- the highest sum bidden for the same. Now this Indenture Witnesseth, That the said referee, the party of the first part to these presents, in order to carry into effect the sale so made by him as aforesaid, in pursuance of the judgment and decree of the said court, and in conformity with the statute in such case made and 294 LAW OF EEFEBEES. provided, and also in consideration of the premises, and of the said sum of money so bidden as aforesaid, being first duly paid by the said party of the second part, the receipt whereof is hereby acknowledged, Hath bargained and sold, and by these presents doth grant and convey unto the said party of the second part (describe premises sold), Together with all the right, title, and interest and estate of each and all of the parties to said action, of, in, and to the said mortgaged premises, and each and every part thereof. To have and to hold all and singular the premises above mentioned and described and hereby conveyed or intended so to be, unto the said party of the second part, , and assigns, to their own proper use and behoof forever. In witness whereof, the said , referee as aforesaid, hath hereunto set his hand and seal the day and year above written. Sealed and delivered in ) the presence of ) State of , ) g County of , ) ' On this day of , in the year one thou- sand eight hundred and , before me per- sonally came , to me known, and known to me to be the individual described in, and who executed the foregoing instrument, and he thereupon acknowledged to me that he had executed the same. No. 120. REFEREE'S REPORT OF SALE. Title of the Cause. > To the Court. I, the undersigned referee, duly appointed by the judg- ment entered herein on the day of , A. D. FORMS. 295 18 , to make the sale of the mortgaged lands and premises in said judgment described, do hereby respectfully report : I. I gave due notice that said mortgaged premises would be sold at public aiiction on the day of , A. D. 18 , at in the of , at o'clock in the noon, pursuant to the statute, and the rules and practice of this court, as appears by the affidavits hereto annexed, marked Schedule A. II. On said day of , A. D. 18 ,1 attended at the time and place for which said sale was noticed, of- fered the said land and premises for sale to the highest bidder, and sold the same to , for the sum of dollars, he being the highest bidder therefor, and at the same time received from him per cent, of said sum of dollars. III. I have paid, pursuant to said judgment (or allowed to the purchaser), out of the purchase money, the sum of dollars for taxes, assessments, and water rates, which were liens on the premises so sold at the time of such sale. IV. I have received from the said , purchaser as aforesaid, the balance of said purchase money, to wit, the sum of dollars, and have disposed of the same as follows : 1. I have retained for my fees and expenses the sum of dollars. 2. I have paid to , attor- ney for the plaintiff the sum of dollars, the costs awarded to him by the judgment herein, and taken his receipt, hereto annexed, marked Schedule B. V. I have paid to the plaintiff (or to plaintiff's attorney), for the sum diie on the bond and mortgage on which this action was brought, the sum of dollars, and taken his receipt therefor, which is hereto annexed. VI. I made, executed, acknowledged, and delivered to the purchaser, pursuant to said judgment, a good and suffi- cient deed of the premises so sold. 296 LAW OF EEFEHEES. The following is a description of the premises so sold and convej'ed by me, as set forth in the complaint herein, and in the deed so made and executed by me, viz. {insert description). {If there was a deficiency in the suit) — VII. I further report that there still remains due to the plaintiff herein on account of said mortgage debt, after ap- plying the proceeds of the sale of said property as set forth herein, the sum of dollars, which I re- port as a deficiency on said sale. {If there was a surplus, insert in place of the foregoing) — And I do further report, that after paying out of the pro- ceeds of said sale the several sums set forth herein, there remained the sum of dollars, which I have paid into court, and deposited with {state where de- posited) pursuant to the statute in such case made and pro- vided, for the use of the person or persons entitled thereto, to abide the further order of this court, as by said judg- ment ordered. STATEMENT. Amount due on bond and mortgage on the day of , A. D. 18 , as per judgment $ Interest to date {when sale closed) $ Amount of purchase money $ Allowed for taxes $ Kef eree's fees and expenses $ Paid plaintiff $ Surplus {or deficiency) $ Dated, , A. D. 18 . Referee. Title of the Cause. > Received this day of , A. D. 18 , from , the referee herein, the sum of dollars, under the provisions of the judgment herein, said siim being part of the proceeds of the sale of the premises described in the complaint herein, and being the amount of my costs in said action as taxed. FORMS. 297 No. 121. ORDER APPOINTING REFEREE AS TO CLAIMS FOR SUR- PLUS MONEYS IN FORECLOSURE. Caption as in No. 1. > On reading and filing notice of the claim of to surplus moneys in this action, and the affidavits of , and , on the referees report of sale herein, and on proof of due service of notice of this application on all parties who have appeared, or who have served notice of claims to such surplus moneys, after hearing , of counsel for said , in favor of this motion, and , of counsel for , in opposition thereto, on motion of , attorney for , It is ordered, that it be referred to , Esq., to ascertain and report the amount due to said , or to any other person, which is a lien on said surplus moneys, and to as- certain the priorities of the several liens thereon. No. 122. REFEREE'S SUMMONS ON REFERENCE AS TO SURPLUS MONEYS IN FORECLOSURE. Title of the Cause. > By virtue of an order of reference herein made on the day of , A. D. 18 , I, the undersigned ref- eree named therein, do hereby summon you to appear be- 298 LAW OF REFEREES. fore me at my office, No. street, in the of , on the day of , A. D. 18 , at o'clock in the noon to ascertain the validity of the claim of , to the surplus moneys arising on the sale of the mortgaged premises named in the complaint herein, and also to ascertain the amount due to any other person, which is a lien on the said surplus moneys, and to ascertain the priorities of such liens. Dated, , A. D. 18 . To {recite parties) , Eeferee. No. 123. REPORT OP REFEREE AS TO SURPLUS MONEYS. Title of the Cause. > To the Court. I, the undersigned referee, appointed by order of this court bearing date the day of A. D. 18 , to ascertain and report the amount due to , and the validity and amount of any other lien upon such surplus moneys, and the priorities of such liens, do hereby report : I. I have taken and subscribed the statutory oath which is hereto annexed. II. I have caused all the parties who have appeared in this action, the owner of the equity of redemption, and all persons who have filed notice of claim to such surplus, to be summoned to appear before me, pursuant to the rules and practice of this court, as appears by said summons and proof of due service thereof, and the certificate of the FORMS. 299 clerk showing what notices of claim have been filed, all which are hereto annexed, marked Schedule A. III. I have been attended on said reference by (state ap- pearances), have heard the proofs and allegations of the parties, and the arguments of counsel thereon. The testi- mony taken before me is hereto annexed, marked Sched- ule B. IV. The amount of such surplus is dollars, as appears by the certificate of the {give title of offi- cer making certificate) hereto annexed, marked Schedule B. V. I find that is entitled to the whole of said surplus. All which is respectfully submitted. Dated, , A. D. 18 . , Eeferee. No. 124. ORDER FOR INTERLOCUTORY JUDGMENT AND APPOINTING REFEREE TO ADMEASURE DOWER. Caption as in No. 1. > On reading and filing the affidavit of , that defendant has failed to appear {or an- swer the complaint herein), or {that the right of plaintiff to recover her dower is not disputed iy the answer herein), and on aU the pleadings and proceedings in this cause, on mo- tion of , attorney for the plaintiff, It is ordered, that plaintiffs dower in said prop- erty, described in said complaint, to wit, {insert description,) be admeasured by , who is hereby appointed referee for that purpose. 300 LAW OF EEFEKEES. No. 125. OATH OF REFEREE IN ACTION FOR DOWER. Title of the Cause. > I, , the referee appointed herein by order {or judgment) bearing date the day of , A. D. 18 , do solemnly swear that I will faithfully, honestly, and impartially execute the trust re- posed in me by said order {or judgment). Jurat. Eeferee. No. 126. REPORT OF REFEREE TO ADMEASURE DOWER. Title of the Cause. > To the Court. I, the undersigned referee, duly appointed by order {or interlocutory judgm,ent) herein, bearing date the day of , A. D. 18 , to admeasure the dower of , plaintiff herein, in the property described in the complaint, do hereby report : I. Before proceeding with said reference I took and sub- scribed the statutory oath, which is hereto annexed. II. Due notice of the time and place of such admeasure- ment was served on aU the parties interested, as appears by the said notice and affidavits of service hereto annexed, marked Schedule A. III. I was attended on such admeasurement by {recite appearances). IV. I caused a survey and map of said premises to be made, which is hereto annexed, marked Schedule B. FORMS. 301 V. I then proceeded to admeasure and lay off to the said , plaintiff, for her dower, the one third of said premises, as follows, (j-ecite description, giving metes and 'bounds^ being the portion colored red on said map, Schedule B. {If admeasui'ement is not practicable insert, instead of V,) In my opinion it is not practicable, nor for the best in- terest of all parties, to admeasure and lay off a distinct parcel to the plaintiff for the following reasons, viz. {state facts and reasons fully). VI. I do further report that the following are the items of my charges for such admeasurement, including my fees as referee : days services as referee at six dol- lars per day % Cash paid , surveyor, at five dollars per day $ Cash paid , assistant to said surveyor, at two dollars per day § In witness whereof I have hereto set my hand seal this day of , A. D. 18 . [l. s.] , Referee. Acknowledgment as in No. 119. No. 127. ORDER OF REFERENCE ON DEFAULT, OR WHERE AN IN- FANT IS A PARTY IN PARTITION. Caption as in No. 1. > On reading and filing the affidavits of , and , and due proof of service of notice of this motion, and on all the 302 LAW OF EEFEEEES. pleadings and proceedings in this cause, after hearing , Esq., of counsel for the plaintiff {or defendant) in favor of said motion, and , Esq., of counsel for defendant {or plaintiff), opposed, on motion of , attorney for said plaintiff {or defendant), It is ordered that be, and he hereby is, appointed referee to take proof of the several matters set forth in the complaint, and of the plaintiffs title and interest in the premises ; to ascertain and report the rights and interests of the several paj-ties in the prem- ises, and an abstract of the conveyances by which the same are held. It is further ordered that said referee take proof and re- port whether the property, or any part thereof, is so cir- cumstanced that a partition cannot be made without great prejudice to the owners, and if he shall find that a sale of said property, or any part thereof, will be necessary, that he then ascertain whether there is any creditor, not a party, who has a lien on the undivided share or interest of any party. No. 128. REFEEEE'S REPORT AS TO TITLE IN PARTITION. Title of the Cause. > To the Court. I, the undersigned referee, appointed herein by order dated the day of , A. D. 18 , to {give epit- ome of order), do hereby report: I. I have taken and subscribed the statutory oath, which is hereto annexed. FORMS. 303 II. I have caused the several parties to this cause to be summoned to appear before me, as appears by said sum- mons, and affidavits of service hereto annexed, marked Schedule A. III. I have been attended on said reference by {recite appearances), have heard the allegations and proofs of the parties, which are hereto annexed, marked Schedule B. The testimony of each witness was carefully read to him by me, and each thereupon subscribed his name. IV. I find that the matters set forth in the complaint are true. Y. I have ascertained the rights, shares, and interests of the several parties in the property of which partition is sought, to be as follows : {State fully the right, share, and interest of each party, the liens or incumbrances thereon, and the name of each lienor or incumbrancer.) VI. I find that the premises are so circumstanced that a partition thereof cannot be made without great prejudice to the owners thereof, for the following reasons : {state reasons fully.) VII. I further report that in pursuance of section 1658 of the Code of Civil Procedure I ha^ve caused due notice to be published, requiring each person not a party, who, at the date of my appointment, had a lien upon any undivided share or interest in the property at a time and place in said order named, to prove his lien and the amount due thereon, as appears by said notice, and affidavits hereto annexed, marked Schedule C. No person not a party has appeared before me pursuant to said notice. VIII. An abstract of the title by which said premises are held is hereto annexed, marked Schedule D. All of which is respectfully submitted. Dated, , A. D. 18 . , Referee. 304 LAW OF EEFEBEES. J. E. L. SCHEDULE D. Abstract of conveyances referred to in foregoing report : War. Deed, Full. CoT. Consideration S Dated Acknowledged Recorded Lib. P. on Purchase money Mortgage to secure $ on J. K. and K. his wife to B. B. to K. Dated Acknowledged Recorded , Referee. No. 129. NOTICE BY REFEREE TO CREDITORS TO PROVE LIEN. Title of the Cause. > I, , the referee duly ap- pointed by order made herein on the day of , A. D. 18 , do hereby give notice to and require each person who is not a party to the above entitled action, and who, on the (date of the order of reference) had a lien upon any undivided share or interest in the following de- scribed property, to appear before me at my office No. street, in the of on the day of , A. D. 18 , at o'clock in the noon, to prove his lien, and the amount due, or to become due thereon, by virtue thereof. The property is described in the complaint herein as fol- lows : {insert desc7'ij)tion.) Dated, , A. D. 18 . , Referee. FORMS. 305 No. 130. REPORT OF SALE IN PARTITION. Title of the Cause. > To tlie Court. I, the undersigned referee, appointed by the interlocu- tory judgment entered herein on the day of , A. D. 18 , do hereby report : I. I have caused due notice, pursuant to the statute in such case made and provided, and to the rules and prac- tice of this court, to be given of the time and place of sale as appears by copies of said notice, and affidavits hereto annexed, marked Schedule A. II. Pursuant to such notice I did, on the day of , A. D. 18 , at o'clock in the noon, at , the time and place in said notice speci- fied, expose the said premises for sale at auction to the highest bidder. III. The said several lots or parcels in said complaint described were sold separately to the following persons re- spectively, the highest bidders therefor, viz. : The parcel described as follows (insert description) was sold to , for the sum of dollars, he being the highest bidder therefor. IV. The written terms of sale were made known to the persons in attendanee at said sale before offering said prop- erty, and were as follows : (As in No. 118.) V. The said , and the said , have signed the con- ditions of sale above mentioned, and have paid to me the amount required to be paid thereby. All which is respectfully submitted. Dated, , A. D. 18 . , Eeferee. 306 LAW OF BEFEREES. No. 131. CONSENT TO REFER m MATRIMONIAL ACTIONS. Title of the Cause. > "We hereby consent that a jury trial in the above entitled action be, and the same hereby is, waived, and that an or- der be entered by either party referring said action and all the issues therein to a referee to be designated by the court, to hear and determine the same. Dated, , A. D. 18 . , Plaintiff's Attorney. , Defendant's Attorney. No. 132. ORDER OF REFERENCE IN ACTION FOR DIVORCE FOR ADULTERY. Caption as in No. 1. > On reading and filing the stipulation of the parties hereto annexed waiving a trial by jury, and consenting to a ref- erence of this action, and all the issues therein. It is or- dered, that this action, and all the issues therein, be referred to , Esq., to hear and determine the same. (//", where the wife is plaintiff, it ie desired that the referee shoidd report on the question of alimony, add) — FOEMS. 307 It is further ordered that the said referee inquire and re- port as to the situation and value of the real property of the defendant, and the amount of his income therefrom, the value of his personal property, and the income therefrom, and the amount of his income from his professional ser- vices, and what would be a proper sum to be allowed to said plaintiff for alimony, and for the support, maintenance, and education of the children of said marriage. (7/" it is desired that the referee should ascertain who should have the custody of the children, add) — It is further ordered, that said referee enquire and re- port who should have the custody of the children of said marriage. The general form of the order of reference is the same in all contested matrimonial actions. No. 133. REFEREE'S REPORT IN AN ACTION FOR DIVORCE FOR ADULTER?. Title of the Cause. To the Court of I, the undersigned referee, duly appointed by an order bearing date the day of , A. D. 18 , to hear and determine this action and all the issues herein, do hereby report : I. That I have been attended on said reference by the parties thereto, , Esq., appearing on behalf of said plaintiff, and , appearing on behalf of the said defendant, and having duly consid- ered the allegations and proofs of the parties and the ar- guments of counsel thereon, do find as follows : I, That on the day of A. D. 18 , 308 LAW OF BEFEREES. the plaintiff intermarried witli the defendant at , in the state of II. That from that time until on or about the day of , A. D. 18 , the plaintiff and defendant lived and co-habited together as husband and wife. III. That the issue of said marriage are , aged years on the day of last past, and , aged years on the day of last past. IV. That on the day of , A. D. 18 , at No. street, in the of , the defendant committed adultery with {recite other acts if found). V. That said adultery was committed without the con- sent, connivance, privity, or procurement of said plaintiff. VI. That five years have not elapsed since plaintiff dis- covered the fact of said adultery. VII. That plaintiff has not voluntarily co-habited with the defendant since the discovery by him of such adultery. VIII. That at the time of the commission of said acts of adultery both parties were residents of this state, {or the parties were married within this state ; or the plaintiff was a resident of this state when the said adultery was committed, and when this action was begun ; or said adultery was com- mitted in this state, and said plaintiff was a resident thereof when this action was begun, as the case may be). IX. That there is no judgment or decree in any court of the state, of competent jurisdiction, against plaintiff in fa- vor of defendant for a divorce on the ground of adultery. 1. I find as a conclusion of law that a divorce should be granted to the plaintiff against the defendant for said adul- tery so committed by him. 2. That the defendant should pay the costs of this ac- tion to be taxed, and plaintiff have judgment therefor. A record of the proceedings and the testimony taken be- fore me are hereto annexed, marked Schedule A. FOBMS. 309 Before taking any testimony I took and subscribed the statutory oath, whicli is hereto annexed. Dated, , A. D. 18 . , Referee. {If the referee was directed to report on the question of ali- mony, insert, as findings of fact) — X. That the plaintiff has real property of the value of , encumbered by , and personal property of the value of , and that his annual income therefrom is not less than XI. That defendant is possessed of real property of the value of , encumbered by , and personal property of the value of , and that his annual income there- from is not less than , and his annual income from his profession is not less than per year. {And as a further conclusion of law) — 3. That defendant should pay to the plaintiff alimony at the rate of per year, payable quar- terly, on the days of in each year. {If the referee is directed to inquire which of the parties should have the custody of the children, add, as a conclusion of law) — 4. That the plaintiff should have the care and custody of the children. 5. That the defendant should pay to the plaintiff the sum of , dollars per year from the date of the judgment herein, for the support, maintenance, and education of said children, to be paid quarterly on the days of in each year, and secure the payment thereof {by bond and mortgage on real property, or bond with sureties, as the case may be). The general form of report is the same in all contested matrimonial actions. 310 LAW OF BEFEEEES. No. 134. ORDER OF REFERENCE ON DEFAULT IN ACTION FOR DIVORCE. Caption as in No. 1. > On reading and filing the aiBdavit of , showing that the summons and complaint were duly served on , the defendant, more than twenty days since, and that no notice of appearance (or demurrer, or answer has heen served, or that none of the allegations of the complaint are denied iy the answer) on motion of , at- torney for the plaintiff, It is ordered, that it be referred to , to take proof of all the material facts alleged in the complaint, and report thereon to this court with all convenient speed. If it is desired that the referee pass upon the questions of alimony and custody of the children, insert directions therefor as in No. 132. The general form of the order of reference in default is the same in all matrimonial actions. No. 135. REPORT OF REFEREE ON REFERENCE ON DEFAULT IN ACTIONS FOR DIVORCE FOR ADULTERY. Title of the Cause. > To the Court. I, the undersigned referee, duly appointed by order made herein on the day of A. D. 18 , to {give epitome of order) do hereby report : FORMS. 311 I. Before proceeding to take testimony I took and sub- scribed the statutory oath, which is hereto aifnexed. II. I have been attended on said reference by (recite ajj- pearaiices), have heard the proofs and allegations of the parties. The testimony taken before me on said reference is hereto annexed, marked Schedule A. Add findings of fact and conclusions of law as in No. 133. The general form of report on reference on default is the same in all matrimonial actions. No. 136. ORDER OF REFERENCE AS TO ALIMONY AND COUNSEL FEES BEFORE DECREE. Caption as in No. 1. > On reading and filing the petition (or affidavits) of , and notice of motion, and on all the pleadings and proceedings in this cause, no one ap- pearing to oppose, (or after hearing , of counsel for plaintiff , or defendant, in favor of said motion, and , of counsel for defendant, or plaintiff, in opposition thereto,) on motion of , attorney for said plaintiff (or defendant), It is ordered that it be referred to , Esq., to ascertain and report the value of the property of each of the parties hereto, the income therefrom, and what would be a reason- able sum to be allowed to the plaintiff (or defendant) for counsel fees, support and maintenance during the pendency of this action, and how, and at what times the same should be paid. 312 LAW OP EEFEREES, No. 137. REPORT OF REFEREE AS TO ALIMONY AND COUNSEL FEES BEFORE DECREE. Title of the Cause. > To the Court. I, the undersigned referee, to whom, by order bearing date the day of , A. D. 18 , it was referred (give epitome of order) do hereby report : I. Before taking any testimony I took and subscribed the statutory oath, which is hereto annexed. II. I have been attended on said reference by (recite ap- pearances), and have heard the proofs and allegations of the parties, which are hereto annexed, marked Schedule A. III. I find that the husband possesses real property con- sisting of (give a general description), of the value of {state value), that the same is encumbered by (state encum- hrances), that the net annual income of the same is not less than the sum of $ III. I find that the husband has personal property of the value of $ , yielding an annual net income of not less than $ , and that his annual income from his professional [or persorial) services is not less than $ IV. I find that the wife is wholly without means where- with to support herself and carry on this suit, {or that she is possessed of, etc., as above). {If for any reason, as living in adultery, the wife is not en- titled, insert findings in respect thereto.) V. I am therefore of the opinion that , plaintiff {or defendant), should, within days after notice of the order entered on this report, pay to the defendant {or plaintiff) herein, or to her attorney, the sum of dollars, as a reason- FOBMS. 313 able counsel fee herein, and that he should pay the said defendant (or plaintiff ) the sum of dollars per year from the date hereof until judgment shaU be en- tered herein, said sum to be paid in equal weekly payments on Monday of each week, at , and that said defendant {or plaintiff) give her receipt therefor. All which is respectfully submitted. Dated, , A. D. 18 . , Referee, No. 138. REPORT OF REFEREE IN AN ACTION TO FORECLOSE A MECHANIC'S LIEN. Title of the Cause. > To the Court. I, the undersigned referee, duly appointed by order herein bearing date the day of , A. D. 18 , do hereby report : I. I have been attended on the reference herein by {re- cite appearances), have heard the allegations and proofs of the parties, and the arguments of counsel thereon. II. Before taking any evidence I took and subscribed the statutory oath, which is hereto annexed. I find as matters of fact : 1. That on the day of , A. D. 18 , the defendant was the owner in fee {if not the owner state what 314 LAW OF EEFEEEES. interest he had) of the following described premises {describe carefully the premises to he sold). 2. That on or about the day of , A. D. 18 , the plaintiff made and entered into a contract (if in writing state tliefact) with the said defendant, by the terms whereof the plaintiff promised and agreed to (state what plaintiff agreed to do), on or before the day of A. D. 18 , for which said work, labor, services, and materials the said defendant promised and agreed to pay this plaintiff as follows : (state terms and amount of pay- ment^ 3. That thereafter and before (or on) said day of , A. D. 18 , this plaintiff duly furnished all said work, labor, services, and materials, and duly kept and performed all the acts and things by him to be kept, done, and performed by the terms of said contract, and in con- formity therewith. 4. That all said work, labor, and services were done and performed, and all said materials were furnished and used in and about said buildings and premises under and in con- formity with said contract. 5. That by the terms of said contract the plaintiff be- came, and was, entitled to receive the said sum of (state price) on the (state time of payment). 6. That no part of said sum has been paid, and the same is now due from said defendant, with interest thereon from the (date fixed iy the contract). 7. That on the day of , A. D. 18 , before the beginning of this action, and within ninety days after said work was completed and such materials fur- nished, the plaintiff duly made, verified, and filed in the office of the clerk of the county of , in which said county said premises are situated, a notice of lien, in ac- FOKMS. 315 cordance with the statute in such case made and provided, upon said buildings and premises for said sum of dollars so due to him, and on said day of , A. D. 18 , said lien was, in such case made and provided, duly entered and docketed in the of- fice of said clerk of said county of 8. A copy of said notice was, within ten days thereafter, and on the day of , A. D. 18 , duly personally served upon the owner of said premises, by de- livering to, and leaving with him, a copy thereof {or served in any other manner provided hy statute). 9. That no other action or proceeding for the foreclosure of said lien, or to enforce payment of the amount claimed thereunder, has been begun, that said money claimed has not been paid, that said lien has not been cancelled or dis- charged of record, and that within one year after the filing of said lien, and on the day of ■ , A. D. 18 , a notice of the pendency of this action was duly made and filed in the office of the clerk of said county of 10. That there are no other liens upon said property or premises. {If other persons have filed liens against said property, or if they are encumbered hy judgment, mortgage or conveyance, insert findings in respect thereto, and the date lohen such lien or encuvibrance became operative.) And I find as conclusions of law : 1. That at the time of the beginning of this action the defendant was, and now is, indebted to the plaintiff in the sum of dollars. 2. That plaintiff, by virtue of the premises, has acquired a valid lien upon the interest the defendant had in said premises on the day of , A. D. 18 , the date of filing said notice of lien. 316 LAW OF EEFEKEES. 3. That plaintiff is entitled to judgment against tlie de- fendant in accordance with the statutes and the rules and practice of this court, for a foreclosure of said lien, for a sale of all the right, title and interest of said defendant in and to said property on the {date of filing lien), and for the payment to him from the proceeds of said sale, of the said sum of {amount found due and interest to date), with costs to be taxed, and in case the proceeds of said sale should be insufficient to satisfy plaintiff's demand, said plaintiff is entitled to judgment against said defendant for such defi- ciency as shall remain due to him, and I order judgment accordingly. INDEX. {The References are to Pages.) Abstract of Title in Partition — By whom made 185 Contents 186 ACOEPTANOB — by widow of assignment ol dower bars action therefor 181 AOCOUNT — action of 1 directly involved when referable 12, 18 duly verified, presumptive evidence on accounting 98 for what period to be stated 96 how stated on accounting 96 how verified 96 incidentally involved, not ground for reference 19 In equitable actions, referable 13 in equity, .referee not obliged to take and state after trying issues 39 in surrogate's court, how contested 135 items of may all he on one side 16 long, many items do not make 15 long, what constitutes 18 may be introduced by oompjaint, answer, or counter-claim 30 may be taken by a referee other than one who tried the issues. . 39 must be long 18 numerous items of damage do not make 18 objections to, how made 135 objections to, must be specific 135 of assignee under assignment act, contents 125 party may require to be stated in form of debt and credit 95 presumptive evidence in favor of accounting party 186 referable, items may be on one side 16 referable, must be directly involved 19 referee cannot take after filing report 59 referee may be ordered to take and state on default 93 schedules, etc., to account, contents 99 to obtain compulsory reference, action must involve 15 318 INDEX. AOOOUNT — what constitutes referable 15 what does not constitute referable 15, 16 when incidentally involved reference not compelled 19,20 When referee cannot take 37 ACOODNTING — Party may be examined on oath 95, 96, 137 proceedings on 95 imder assignment act, proceedings on 125 Acknowledgment — of report of referee to admeasure dower 176 Action — against trustees of corporation for failure to file report, refer- ence not ordered in 14 for divorce referable only by consent 190 for divorce, what must be proved in 193 for dower, barred by acceptance by widow of assignment of 181 In equity, referable 12 may be referred after trial by jury 25 not brought in good faith no ground for refusing reference. ...... 25 of account, obsolete 1 on acconnt stated, reference not compelled in 20 referee cannot allow amendment changing nature of 44 to foreclose mechanic's lien, conduct of 172, 174 to foreclose mechBrnc's lien, reference in 172 Adding^ or striking out name of party, when referee may allow 47 Additional Allowance — certificate of referee as to 72 certificate of referee as to form for 239 Adjournment — discretion of referee over 40 cannot be granted on condition that adverse party may demur. . 41 costs may be imposed on granting 41 if granted unreasonably order of reference may be set aside 40 order granting on terms, form of 230 is in discretion of referee 40 may be granted to allow party to amend 40 unreasonable ground for vacating reference 40 of examination in supplementary proceedings 121 when referee not entitled to fees for 65, 71 Admeasurement of dower 176 duties of referee in 177 fees of referee in 180 fees of referee must be taxed 180 INDEX. 319 Admeasurement of Dowbe — It not practicable, referee must report fact 179 in dwelling house 178 In distinct parcels 178 in lands held in common 177 in lands held in severalty 177, 178 in mines 178 removal of referee in 176 report of referee in 180, 917 report of referee, form 300 report of referee in, may be set aside 180 report of referee in, must be acknowledged 180 Admiralty — claims cognizable in, not enforced in state courts 174 ADtri.TEET — collusion in action for 194, 195 connivance at 193 consent to 193 husband and wife, when competent witnesses as to 191 legitimacy of children in actions tor divorce for, when tried 191 of plaintiff, when not a bar to action 197 references in actions for divorce for 190 report of referee in action fer divorce for 193 when a bar to action for separation 304 Abvbetising — For liens in partition, when ordered or dispensed with 185 For liens in partitioa from ." 304 Advising Compromise — suggesting terms, report set cslde for 68 Affidavit — as to connivance, etc., in actions for divorce, when not neces- sary. .191, 195 as to tees of referee, contents 64, 70 by attorney on motion for reference, form 313 by party on motion for reference, form 311 of production of book and papers, form 349 of referee as to tees, form 388 of service of subpoena, form 323 on motion for reference, by whom made 23 on motion for reference, contents 24 to obtain reference to take deposition for use on motion, form.. 252 to oppose motion for reference by denying account, form 314 to oppose motion for reference on the ground of special con- tract, form 318 to oppose motion tor reference on the ground that a speedy trial may be had, form 316 320 INDEX. Affidavit — to oppose motion for reference when a difficult question of law is involved, form 216 to oppose motion for reference where the account is collateral- ly involved, form 215 to oppose motion for reference when the action is not founded on contract, form 214 to oppose motion for reference when fraud is set up as a de- fense, form 215 Agreement — to refer disputed claim, contents 130 to refer disputed claim, how made 130 to refer disputed claim, form for 269 to refer disputed claim must be approved 130 to refer disputed claim, form of approval 269 Alienation — during life of husband, how dower assigned 178 Alimony — after decree, reference as to 203 and counsel fees before decree, reference as to 199 before decree, form of order of reference 312 before decree, how defeated 200 before decree, when allowed 199 Allowance — additional, certificate of referee as to 71, 72 additional, oertifloate of referee, form for 239 for services, court cannot grant to referee 65 Alternate Occupation — when assigned in dower 178 Amended — answer to amended complaint when not a matter of right 46 pleadings should appear in the record 47 . Amendment — adjournment may be had to enable party to move for ... 47 acceptance of costs on, a waiver of objections to allowance of... 47 how reviewed 47, 48 changing nature of action or defense, referee cannot allow 44 character of action not to be changed by .....^ 44, 45 decision on application for may be reserved until close of trial.. 47 by order of court does not, of itself, terminate reference 66 of pleadings to correspond with proof must be spread upon the record 47 INDEX. 321 Amendment— order allowing, form for 329 power of referee to allow 44 setting up new cause of action or defense, referee cannot allow 45 what may be allowed on trial 45, 46, 47 what may be allowed in findings 47 within referees power, discretionary 46 Answbe — account may be introduced by 29 cannot change nature of action 14, 15 Appbaeanoe — and proceeding on the reference a waiver of insufficient notice of hearing 34 Application — for reference of issues, how made 33 Appointment of Referee — by whom made 11, 111 for what set aside 9 in action for dower 176 may be set aside for bias 67 may be set aside for any irregularity 67 may be set aside for advising compromise and suggesting terms 68 may be set aside for importunity for political appointment 69 may be set aside for inspection of subject of action without no- tice 68 may be set aside for making order he had no authority to make. 70 may be set aside for promising to report in favor of each party 68 may be set aside for obtaining bond and mortgage for excessive fees 68 may be set aside for signing report without consultation with other referees 68, 69 memorandum on circuit calendar is not 10 not vacated by reversal of judgment 9 not vacated for irregularity after judgment 69 not vacated because the judge signing order by consent was a relative of one of the parties 69 Approval — by surrogate, of agreement to refer, form 369 Arbitration — when consent makes 5 Arbitrators — appointment under Dutch governors 1 Assessments — when widows not chargeable with in actions for dower 179 Assignment Act — references under 133 322 INDEX. Assignment of Dowbe — acceptance by widow bars action for 181 from several parcels I'lS in mines l'?8 where widow redeems from mortgage 179 Attorney — promising to pay fees, liable therefor 63 when liable for fees of referee 63 when not liable for fees of referee 63 Attobnets — action for services, court may refuse reference, though long ac- count involved 25 action for services, reference may be ordered before trial to as- certain value 92 action for services, when reference refused in 25 bill for services in a single matter does not constitute an ac- count 16 fees, reference may be ordered to ascertain amount of 93 lien, existence and amount of may be ascertained by reference. . 83 lien, reference to ascertain amount may be had before or after trial 83 AUTHOEITT — of court over referee 32 Bias — of referee, report set aside for 67, 68 of referee, opportunity for, report set aside 67, 68 Bill — of attorney for services in a single matter does not constitute a long account 17 one of many items not an account 15 Bill of Exceptions — form and contents 80 form for 245 how settled where more than one referee is appointed 81 when time to serve begins to run 77 Books — opening sealed, a contempt 97 parts not relevant may be sealed 96 party producing may be examined to see If he has produced all. 97 referee may order deposited for inspection 96 sealed, when referee may open 97 witness may be subpoenaed to produce 87 Books and Papers — affidavit of production of, form 249 production may be ordered on reference in surrogate's court 137 referee in supplementary proceedings may order production of.. 121 INDEX. 323 Canal Boat — a vessel within N. Y. Act of 1863 175 Caption — of an affidavit form 208 of an order of court in an action, form 207 of an order of court in special proceeding, form 208 of chamber order in an action, form 207 o£ chamber order in special proceedings 208 of notice of motion, form 309 Case — containing evidence, when essential 78 contents of 77 duty of referee in settling 79 errors in settlement of, how corrected 79 how settled where more than one referee has been appointed,... 79 making and settling essential to a review of the judgment 77 must be certiiled by referee 79 must state that it contains all the evidence if review of facts is desired 78 on appeal, form 341 settlement a ministerial duty 66 should contain only what is allowed by referee 80 when making unnecessary 80 when time to make begins to run 77 Cause — may be referred, though once tried by jury 25 not referable joined with referable, does not prevent reference.. 25 not ready for trial, when objection must be taken 26 of action for fees, referee may assign 63 Cbetifioate — for costs, or increased costs, form 340 of non-production of books and papers, form 349 of referee as to increased costs 73 of referee as to increased costs, form 240 of referee on settlement of case 73 of referee on settlement of case, form 244 of referee that the action is a proper one for an extra allowance, form 239 of referee to deposition of party, or expected party, form 256 of referee to examination under § 21 of the assignment act, form 277 Chaeaotee — of action, complaint determines 14 Childeen — legitimacy of , when tried in divorce 194 324 INDEX. Claim — against estate in hands of receivers, reference of 94 against receiver, reference of 94 against sliips and vessels, proceedings to enforce 174 disputed, against estate of deceased person, reference of 129 disputed, against estate of deceased person, wliat referable 139 to surplus moneys on foreclosure, reference as to 166 to surplus moneys, what admissible 168 Clerk — of court of record when may act as referee 7 of court of record when may not be referee , 7 or partner of attorney, or counsel in the cause not to be referee 7 when may not be referee 7 CODB— has not enlarged power to order a reference 13, 13 COMMISSIONEE — of appeals may be referee 6, 7 Commissions — of referee in partition 189 Common Law — action for tort, reference cannot be ordered in 14 action for tort, right of trial by jury absolute in 14 Compensation — Judge acting as referee cannot receive 7 of referee, how fixed 63 of referee in dower 180 of referee in foreclosure 165 of referee in partition 189 of referee on appeal from commissioner of highways 145 Complaint — determines character of action 14 referee may dismiss 36 referee may permit amendment of 44, 45 when may be amended 45, 46 COMPKOMISE — report set aside because referee advised 68 Compulsory Reference — can be ordered only where it could have been before code 13 code has not enlarged right to order 3, 13 motion for, how made 33 motion for, how resisted 34 not ordered in action for tort 14 ordered only in actions on contract 13, 13 provisions for, not mandatory but permissive 13 when ordered 13 INDEX. 325 Consent — judgment cannot be entered by, in matrimonial actions 188 to refer, conclusive on parties 5 to refer, construction of 6 to refer, form and contents 5 to refer, how made 5 to refer in matrimonial actions 190 to refer in matrimonial actions, form 306 to refer in other than matrimonial actions, form 209 to refer must be in writing 5 to refer, what objections waived by 5 to refer, when it makes an arbitration 5 to refer, when works a discontinuance 5 what may be referred by 4 Contempt — in refusing to answer, duty of referee 49 in violating injunction actual damage must be proved 49 order of attachment for, wlien Issued 49 power to punish, concurrent in court and referee 48 referee in interlocutory references cannot punish 87 referee in special proceedings cannot punish Ill referee may punish witness on a trial before him for 48 refusal to leave books and papers he was ordered only to pro- duce is not 40 Contract — actions founded on, only referable 13 for work, labor, and services, action to foreclose lien must show 173 includes covenant 13 reference ordered only in actions on 13 CONTEOVEEST — between receivers of corporation and debtor, reference of 148 CONVBTANOK — by husband to wife during coverture no bar to dower 179 Copt — of notice of lien, report must show service of 173 COEPOEATION — , reference on dissolution of 147 Costs — increased, certificate as to 72 increased, certificate as to, form 240 clerk cannot refuse to tax because report was irregularly ob- tained 70 how adjusted 70 may be awarded on reference of disputed claim 131 may be imposed as a condition of adjournment 41 326 INDEX. Costs — may be imposed on allowing amendment 47 what disbursements allowed in 71 when lees of referee on interlocutory reference allowed in 104 when referee must give direction as to 53 when stenographer's fees allowed in 71 Counsel Fees — before decree in matrimonial actions, reference as to 199 when allowed as damages on injunction 116 COTJNTBE-OLAIM — account in 37 cannot be tried on reference of disputed claim 131 when not allowed in surrogate's court against dower 175 Court — authority of, over referee 33 cannot compel successful party to take up report and pay fees.. 64 has concurrent power with referee to punish for contempt 48 has no control over stipulation for increased fees 63 may order reference for its own information 94 when may set aside report of referee 67 Covenant — reference may be ordered in action on 13 Ceedibilitt of Witnesses — for referee 43 Creditor — by judgment may attack conveyances on reference as to surplus moneys 169 Cross Suits — but one reference ordered in 33 Damages — for negligence, reference not ordered in actions for 14 increased, report on 67 in dower, can be recovered only under the statute 181 in dower, how assessed on terre tenants 181 in dower, how computed 180 in dower, use of permanent improvement made after death of husband not included 180 in dower, what defendants not liable for 181 in dower, what interest allowed 183 in dower, when heir liable for 181 in dower when property is aliened by heir of husband 181 on injunction, limit of 116 on injunction, reference to ascertain 113 on injunction, what constitutes 115 on injunction, when not allowed 116 unliquidated, for breach of contract, reference not ordered in actions for 14 INDEX. 327 Date — of filing notice of lien, report of referee must show 173 Death — of party and substitution of another, reference not terminated by 66 of party, order of reference not affected by 11, 66 of referee appointed on motion does not avoid order 66 of referee appointed by consent vacates order 66 Debt — when contracted within New York, ship lien act of 1863 175 Deed — of referee to sell, contents 163 of referee in foreclosure, form 293 Default — in matrimonial actions, reference on 197, 203 Defeated Paety — in divorce, remedy of igg Defendant — not occupying, nor claiming right to occupy, premises not liable for damages in dower 181 Defenses — m action for separation 204 Demands — against slips and vessels, references in proceedings to enforce. . 174 Demueeee — may be referred 4 reference not ordered while pending 4 Depositions — referee taking de bene esse not bound to take irrelevant testi- mony 88 to be read on motion, reference to take 100 Difficult Questions of Law — point must be stated 24 reference not ordered when involved ^ 21 DiSBUESIMENTS — on sale in •foreclosure, what allowed 165 Discovert — of books and papers on examination of party before trial 105 Discretion — of court in ordering reference when reviewed 80 of referee, adjournments within 40 . of referee, amendments within 44 of referee, leading questions within 44 of referee, number of witness as to character within 45 of referee, what within 38 328 INDEX. Dismissal of Complaint — when equivalent to nonsuit 50 Disputed Claim — against decedent, agreement to refer 130 reference of 130, 131 what constitutes 180 what may be referred 130 under assignment act, reference of 134 Dissolution — of joint stock company, reference on 93 DiVOECB — action for, referable only by consent 4 judgment in action for, how entered 190 referee in actions for, must be sworn 191 reference in, when ordered 190 reference in default on actions for 197 report of referee in actions for 192 when husband and wife may testify in actions for 191 DOWEK — action for, maybe referred 176 assignment out of several parcels 178 conveyance by husband to wife does not diminish 179 gross sum in lieu of, how computed 181, 183 how admeasured 177 how admeasured in dwelling-house and store 178 how admeasured when part of land is held in common 177 how assigned when widow redeems from mortgage 179 in land encumbered, how assigned 177 in mines, how assigned 178 in partition, how computed 183 in surplus moneys, how assigned 179 may be voluntarily assigned by user 181 referee to admeasure, appointment of 176 report of referee to admeasure 179 value in, when determined 178 when counter-claim cannot be set up against 179 Dutch Govbrnoes — references under 1 DWELLING-HOUSB — assignment of dower In 178 Equity Actions — referable 4, 12 BVIDENOE— improper, error to receive under objection 43 in actions for divorce, what sufficient 193, 194 not binding on persons not parties when taken 37 when referee may strike out 42 INDEX. 329 Examination — of party before trial may be had before referee 104 under section 31 of assignment act, wlien refused 133 Exceptions — construction of 76 how taken 74 leave may be given to file now for then 76 must be specific 76 not filed in proper term unavailable 76 only those in fact taken to be inserted in case 79 time to serve not extended by extension of time to serve ease... 77 to conclusions of law, when unnecessary 75 to report, how and when taken 74 to report, in divorce when filed 194 to report of referee, form 341 to report of referee to sell in partition 183 to report when time to serve begins to run 90 to request to find how and when taken 75 to ruling of referee, form 339 Excessive Fees — obtaining bond and mortgage for, ground for setting aside re- port 68 Fact, Findings of— to be based on evidence 58 to be separately stated 54 when reviewable 53 Fees of Rbfeeee — afBdavit as to must show how time was spent 65 agreement to give lien on judgment for, disqualifies referee from settling case 66 as to alimony after decree, by whom paid 302 as to receivership, when ordered paid from fund 65 attorney promising to pay, liable for 63 authority of court over, stipulation for 63 cannot be increased by allowance for services 65 cause of action for assignable 63 certificate of referee as to, insufficient 64 court cannot compel successful party to pay 64 court may order deposited under peculiar circumstances 63 errors in, how corrected 73 if disputed, must be taxed 64 if time spent questioned, must be supported by affidavit 64 in excess of statutory rates allowed only by stipulation 71 in wife's action for adultery, court may compel husband to fur- nish means to pay • 64, 194 in two actions tried together ; 65 liability of attorney for 68 330 INDEX. Fees of Refeeee — may be allowed for time spent in considering case 64 may be taxed 64 not to be increased by allowance for services Tl not allowed in costs when the report is set aside for misconduct 73 on appeal from commissioner of highways 145 one against whom reference is ordered cannot be compelled to secure 64 on interlocutory reference may be allowed in costs 71 only statutory rate allowed in the absence of a stipulation 65 on question of fact arising on motion, moving party may be compelled to pay 104 on trial of issues in partition 188 receiver cannot stipulate for extra 63 referee has lien on report for 63 referee may file report and sue for 64 referee may hold report until paid 64 referee may insist they be made secure 63 relating to receivership, when ordered paid from fund 65 referee may appeal from order depriving him of part of 65, 189 stipulation for, authority of court on 63 stipulation for, construction of 63 to admeasure dower 180 to carry judgment into effect 65 to pass accounts of receiver, by whom paid 64 to sell in partition, on what sales allowed 188, 189 to sell in foreclosure 164, 166 to sell in foreclosure, disbursements allowed 165 to sell in foreclosure, on settlement 166 to take and state account of officer of court, by whom paid 64 to take and state account, who liable for 66 under assignment act 127 imder assignment act, may be taxed 127 what included in 66, 71 when attorney liable for 63 when disputed, how sustained 70 when not allowed for adjournments 65, 71 when ordered paid in advance 63 when receiver ordered to pay 64 when referee may sue for 63 Fees of surveyor to lay off dower 180 Findings cannot be changed on settlement of case 79 Findings of Faot^ contrary to pleadings, error 57 exceptions to. when unnecessary 75 general, controlled by special finding 57 must bo incorporated in case 78 INDEX, 331 Findings of fact — must be based on the evidence 56 must be separately stated 54 not to be inserted in judgment 73 particulars going to make up, not necessary 55 FOEBOLOSURB OP MbOHANICS' LiBN— an action 172 reference of action for 172 report of referee in action for 172 form of report on 309 FOEEOLOSUEB OF MoKTGAGB — action for referable 152 deed of referee, contents 163 deed of referee, form for 392 duties of referee to sell 157 fees of referee to sell 165 notice of sale 160 referee has jurisdiction over costs 153 referee may be ordered to report order of sale 83, 157 referee to compute, appointment of 153 referee to sell, bound by judgment 157 referee to sell, cannot purchase 160 referee to sell, may be compelled to give security 160 referee to sell, order of sale 158 reference as to surplus moneys 166 reference to compute, report on 156 report as to surplus moneys 169 re-sale in 103 sale in 159 terms of sale 159 terms of sale, form 291 Form of Action — referee cannot change by amendment 45 FOBM&— Affidavit — by attorney on motion for compulsory reference 312 by pariy on motion for compulsory reference 211 of production of books and papers 349 of referee as to his fees 258 of service of subpcsna 323 to obtain reference to take deposition to be used on motion 252 to oppose motion for reference by denying account 314 to oppose motion for reference on the grounds of a special con- tract 218 to oppose motion for reference on the ground that a speedy trial can be had at circuit 216 332 INDEX. forms- Affidavit — to oppose motion for reference where a diffloult question of law is involved 216 to oppose motion for reference where the action is not fomided on contract 214 to oppose motion for reference where fraud is set up as a de- fense 215 to oppose motion for reference where the account is collaterally involved 215 Agebembnt — to refer a disputed claim against estate of a deceased person.... 269 Bill of exceptions 245 Caption — of an affldavit 208 of a chamber order in an action 207 of a chamber order in special proceedings 208 of an order of court in an action 207 of an order of court in special proceedings 208 of notice of motion 209 Case on appeal 241 Cbetifioatk — for costs or increased costs 240 of non-production of books and papers 249 of referee that the action is a proper one for an extra allowance. 239 of referee to deposition of party, or expected party 256 of referee to examination under § 21 of the assignment act 227 CONSBNT — to reference in matrimonial actions 306 to reference in other than matrimonial actions 209 Appeoval — by surrogate of agreement to refer disputed claim 269 Exceptions— to report of referee 241 to ruling of referee 240 Gbneeal Foem — of order for interlocutory reference made on motion 246 of order made by the court of its own motion 247 of report upon all the issues made by sole referee 231 of report on interlocutory reference 248 of report on all the issues made by more than one referee 233 Notice — by referees to commissioner of highways 266 of appointment to referees on appeal from commissioner of highways 265 of motion for reference of issues 213 INDEX. 333 FOEMS— NOTICB — of motion tor reference to ascertain damages caused by injunc- tion 257 of settlement of case 244 of time and place of hearing 210 of trial before referee 211 terminating reference because report not filed 230 notice to appellant of hearing before commissioner of highways 2C7 to be endorsed on case 343 to creditors to privilege in partition 804 Oath of Referee — 219 in supplementary proceeding 274 to admeasure dower 300 under assignment act 376 of witness 230 Order — adjudging witness guilty of contempt in presence of the court... 233 allowing amendment of pleadings 839 appointing referee as to surplus moneys in foreclosure 397 appointing referee in proceedings to discover death of life tenant 386 appointing referee on accounting in surrogate's court 284 appointing referees on appeal from commissioner of highways. . 364 appointing referee to compute in foreclosure 289 appointing referee to examine judgment debtor in supplement- ary proceedings 373 appointing referee to nominate receiver 258 appointing referee to settle issues 287 appointing referee to take deposition to be issued on motion 253 confirming report of referee on proceedings to sell real estate of infant 273 convicting witness of contempt and directing punishment 338 directing an attachment to issue for contempt 324 for examination of expected party before trial 325 for examination of party before trial 354 for examination of witness, books, etc., under assignment act. . 376 for interlocutory judgment and appointing referee to admeasure dower 299 granting an adjournment on terms 330 of reference as to alimony before decree 311 of reference at circuit 318 of reference by consent 310 of reference on default, or where an infant is a party in parti- tion 301 of reference in an action for divorce for adultery 306 of reference on appeal from commissioner of highways 264 of reference on application to mortgage, lease, or sell real es- tate of infant 270 334 INDEX. FOEMS— Okdee — of reference on contested motion 218 of reference on default In action for divorce for adultery 310 of reference to appoint receiver 261 of reference to ascertain damages caused by injunction 258 of reference to take and state an account 350 referring account of assignee under the assignment act 279 referring disputed claim against estate of deceased person 270 referring disputed claim under assignment act 278 settling case 244 to show cause why accused should not be punished lor contempt 223 to talie proof on default when summons was served by publi- cation ; 255 Peoposai, — of names for receiver , 259 Proposed Amendments to case 248 Refbeeb's — deed in foreclosure 292 summons on reference as to surplus moneys 297 Repoet — and decision on appeal from commissioner of highways 264 as to alimony before decree 312 as to surplus moneys 298 dismissing complaint without prejudice where plaintiff refuses to bring in necessary parties 286 of referee appointing a receiver 262 of referee as to title in partition 302 of referee in action to foreclose a mechanics' lien ..." 313 of referee in action for divorce for adultery 307 of referee in supplementary proceedings 275 of referee nominating a receiver 260 of referee of disputed claim under assignment act 278 of referee on accounting in surrogate's court 285 of referee on accounting under the assignment act 280 of referee on default in action for divorce for adultery 310 of referee on proceedings to discover death of life tenant 287 of referee on proceedings to mortgage real property of infant ... 271 on trial of demurrer 236 of referee to admeasure dower 300 of referee to settle issues 288 of referee to compute in foreclosure 289 of referee to talve and state account 251 of referee to take deposition to be used on motion 253 of sale in foreclosure 294 of sale in partition 305 where defendant fails to appear on the trial 235 INDEX. 335 Forms — Report — when defendant has offered to liquidate damages conditionally. 337 where increased damages are given by statute 237 where judgment is ordered on the pleadings 234 where plaintiff fails to appear on the trial 234 Rbquests to find 331 SnBPCENA — to appear and give evidence 321 to appear, give evidence, and produce books 221 to appear before referees on appeal from commissioner of high- ways 367 Sheriff's return to warrant of attachment 227 Stipulation — as to fees 220 nominating referee if motion for reference is granted 317 to defeat reference 217 to refer pursuant to order granting a favor 219 Summons — to attend before referee 247 to attend on reference to appoint receiver 359 Teems of sale 391 Undertaking to procure discharge 226 Waiver of oath of referee 220 Warrant of attachment on order to show cause 335 Fraud — action for damage for, reference not ordered in 18 question of involved, no bar to reference 35 set up in answer, does not change character of action 14, 15 General Ceeditob — when a party on reference, as to surplus moneys 167 General Form — of order for interlocutory reference made by court of its own motion 247 of order tor interlocutory reference made on motion 246 of report on all the issues made by more than one referee 283 of report on all the issues made by sole referee 331 of report on interlocutory reference 348 General powers and duties of referee to sell 157 Goods sold and delivered, matters of account 17 Gross Sum — in lieu of dower, counter-claim against 179 in lieu of dower, how ascertained 181. 183 in lieu of dower, in surrogate's court 179 336 INDEX. Hbaeing — before referee on interlocutory references, bringing on 85 before referee in special proceedings, bringing on Ill on interlocutory reterenees, bringing on 84 in action to foreclose mechanics' lien 172 may be had at different places 29 may be had where parties reside 11 notice of should be in writing 34 on appeal from commissioner of highways, how brought on 142 on trial of issues, statutory notice necessary 11, 39 Husband — and wife, when competent witness in divorce 187 may be compelled to furnish wife means to take up report.. ..64, 194 Impertinent ok Scandalous Mattbe — may be stricken from account 99 Importunity — for ofBoe by referee, report set aside for 69 Improper Evidence — error to receive under objection 43 Impropriety of Referee — must be proven 68 report may be set aside for 67, 68 Inability — of plaintiff to pay fees not a bar to a reference 25 Indorsing papers 74 Increased Damages — how stated in report 56, 57 Infant — cannot consent to reference 4 if a party, oath cannot be waived 33 lease, mortgage, or sale of real estate of 139 Incidental Questions — reference of 93 Increased Cobts — certificate of referee as to 73 Information — of court, reference may be ordered to obtain for 94 Injunction — damages caused by, what allowed 115 reference to ascertain damages caused by 113 Insurance Policies^ actions on ig INDEX. 337 Inteeest — compound, when allowed 89 how charged 9D in damages for dower, how computed 183 when allowed on accounting 89 Interlocutory Judgment — how reviewed 77 referee may order 58 Inteelooutoet Ebfeeence — discretionary 83 may be ordered to proceed on short notice 86 order for 84 witnesses must sign testimony 87 proceedings on 84, 86 report on 88 right to appeal from order for, how waived 86 when ordered 83 Ieeegulaeitt — in appointing referee, how waived 10 of referee, waiver of 67 report may be set aside for 33, 67 what waived by proceeding with reference 33 Ieeelevant Testimony — referee not bound to take 88 Issue — one involving long account will sustain order 15 involving long account immaterial, when objection should be taken 36 Issues— compulsory reference of 13 compulsory reference of part of 93 for trial by jury, intent to move for does not prevent reference. 35 to be tried by a jury, referee may be appointed to settle 83 Judge — can receive no compensation for acting as referee 7 of court of appeals not to be referee 6 when cannot be referee 6, 7 Judgment — by whom entered 73 contents of 73 death of sole plaintiff after filing report does not prevent entry of 74 entry of, ends functions of referee 73 formal notice of entry necessary 74 how entered on report 73 in action for divorce, how entered 193, 194 338 INDEX. Judgment — in action for divorce, not entered by consent 188 interlocutory, how reviewed 77 interlocutory, referee may order 58 notice of entry, liow given 74 not to be entered until issues tried 73 not vitiated by failure of referee to take oath 33 on default in actions for divorce, how entered 198 on reference of disputed claim 131, 132 on report of referee, how entered 72 on report of referee of controversy with receiver 148 on report of referee under New York banking act, how entered 151 reference may be ordered to settle 83 remedy for errors in 73 reversed, does not vacate appointment of referee 9 when motion for, necessary 74 Judgment Creditor's — action, reference may be ordered to take examination of defend- ant 83 Judgment Roll — by whom made up 73 who responsible for errors in 73 Jurisdiction — objection to, not waived by proceedings with reference 31 JUET — cause may bo referred after trial by 25 Jury Trial — extent of right to 3 how waived 186 not always a matter of right 3 reference to settle issues for 83 Just Allowances — referee may make 88, 89 what are 89 Justice — of court of record in New York, Brooklyn, or Buffalo not to be referee 6 of New York Superior Court may issue attachment under New York shipping act of 1872 175 Laohbs — may he shown to defeat reference 23, 24 when reference refused for 23 INDEX. 339 Law — di£floi4lt questions of involved, prevents reference 31 difficult questions ol, to be stated 34 issue of , referable by consent 4 Layman — may be appointed referee 8 Leading Question — discretion of referee as to 36, 41 Legitimacy of Children — when tiled by referee in divorce 198 Lien — against ships and vessels, notice of must be speoiflo 175 agreement to give on judgment disqualifies referee from settling case 66 in dower, what constitutes 181 in partition, what constitutes 186 of mechanic, foreclosure of 173 of referee on report for fees 64 Liens — advertising for, in dower 183 advertising for, in partition 186, 187 claimed in partition may be contested 186 on surplus moneys 166 report as to 169 what ordered paid on sale of real property 160 Life Tenant — reference on proceedings to discover 140 Liquidated Damages — actions for referable 17 Long Account — attorney's bill for services in a single matter is not 16 must be directly involved 19 reference ordered only in actions involving 13, 18 reference refused where account is incidental 19 what constitutes 16, 18 Majority of Referees — powers of 35 Mandamus — proceedings to compel foreign corporation to produce books may be referred 104 proceedings, reference in 20 Marriage — action to annul, referable only by consent 4, 304 how proved in actions for divorce 193 340 INDEX. Matkimonial Actions— referable only by consent 4, 200, 303 Mechanic's Lien — reference in action to foreclose 172 Mbsnb Profits — what are 182 Mines — assignment of dower in 178 Minutes — of referee his property 39 MiSCONDDOT OF ReFEKEE — burden of proof 69 report set aside for, when 67, 68 what constitutes 68, 69 Moetgage — assignment of dower when widow redeems from 179 Motion — for alimony before decree, how resisted 200 for alimony before decree, moving papers 199 for alimony before decree, where made 199, 200 for judgment in divorce, where made 194 setting aside report on 67 to dismiss complaint, how reviewed 50 to dismiss, immediate ruling may be required 50 to dismiss may be granted on failure of proof 50 to set aside report directing interlocutory judgment, when and where made 69 to set aside report, how reviewed 69 Moving Papers — on motion for compulsory reference, contents 23 New Referee — when party may move for 9 Nonsuit — by referee, how reviewed 36 referee may order 36 Notice — by referees to commissioner of highways, form 265 of entry of judgment, how given 74 of hearing, how given 95 of hearing, irregularity in, how waived 34 of hearing, statutoiy, when must be given 11 ol motion for reference of issues, form 213 of motion for reference to ascertain damages on Injunction, form 257 of reference in surrogate's court 133, 134 INDEX. 341 Notice — of sale, contents 161 of sale, how given 161 of sale in foreclosure 160 of sale, to whom given 163 of settlement of case, form 244 of time and place of hearing, form 210 of time and place of trial should be in writing 34 of trial before referee, form 311 of trial, statutory a matter of right 34 terminating reference, form 380 to appellant of hearing on appeal from commissioner of high- ways, form 266 to be endorsed on case, form 343 to creditors to prove lien in partition, form 304 Number — of referees to be appointed 28 of referees, how increased 39, 30 of witnesses as to character, in discretion of referee 42 Numerous Items — do not malie account 26 Oath of Referee — 33 form 319 cannot be waived where infants concerned 33 In supplementary proceedings, form 274 failure to take, when does not vitiate judgment 33 how waived 33 to admeasure dower 173 to admeasure dower, form 300 under assignment act, form 376 what is a waiver of ; 33 when waived 33 Opinion of Witness, form 330 Objection to — account in surrogate's court must be specific 135 account, referee may require to be in writing 97 evidence, decision on maybe reserved 43 evidence, failure to rule on, how reviewed 43 evidence, right to immediate ruling on 43 evidence, where ruling reserved referee must notify parties of decision 44 order of reference, how waived 36, 31 order of reference prescribing evidence to be taken, how waived 38 order of reference, what not waived by proceeding under 26 order of reference, when to be taken 31 referee, when to be taken 26 342 INDEX. Objections — what must be taken on motion to refer 36 Offek — to liquidate damages, duties of referee on 39 Opening— sealed books, when a contempt 97 case to hear further evidence 38 Opinion of Refbebb — not a report 56 to appear in case 79 Oedeb — adjudging witness guilty of contempt before court, form 223 allowing amendment must be accepted as a whole 46 Oedee Appointing Referees — as to surplus moneys, form 297 in proceedings to discover death of life tenant, form 286 not named in consent, when void 10 on accounting in surrogate's court, form 284 on appeal from commissioner of highways, form 246 to compute in foreclosure, form 389 to examine judgment debtor, form 273 to nominate receiver, form 258 to settle issues, form 287 to take account under assignment act 125 to take deposition to be used on motion, form 253 appointing three referees, may provide for the discharge of two 11 Oedee — confirming report of referee on proceedings to sell real estate of infant, form 273 convicting witness of contempt and directing his punishment, form 228 directing attachment to issue for contempt, form 234 for examination of expected party before trial, form 255 for examination of party before trial, form 254 for examination of witnesses, books, etc., under the assignment act. form 276 for interlocutor}' reference, appealable 286 for interlocutory reference, forms 246, 247 for judgment, and admeasurement of dower 299 granting adjournment on terms, form 230 of arrest on allegations of fraud, when not a bar to reference ... 25 of proof , when in discretion of referee 36, 41 Oedee of Reference — as to alimony before decree 199, 200 at circuit, form 218 INDEX. 343 Oedbe of Refeeekoe— by consent, by whom made 9,10 by consent, foriu 210 by consent, may be made by judge disqualified from trying cause 10 by consent, may be made now for then 10 construction of H form and contents 29 how reviewed 30 in action to foreclose mechanics' lien 172 in divorce to referee named by parties, voidable 190 in action for divorce for adultery, form SCO in divorce, form and contents 191 in divorce, when entered now for then 191 in interlocutory references, provisions of 80 in proceedings to sell real estate of infants 140 in special proceedings - Ill in supplementary proceedings, form and contents 118 in surrogate's court, form and contents 134 is appealable 30 made by wrong branch of court, objections to 26 may be refused where fraud is involved 25 may be set aside for advising compromise 68 ' may provide for sittings at different places 11 must be made by court 9 must follow consent 10 not affected by death of party 11, 66 not affected by reversal of judgment 9 on appeal from commissioner of highways, form 264 on application to mortgage real estate of infant, form 270 on default in action for divorce for adultery, form 310 on default in partition, form and contents 181 objections to, how waived 26 of issues in divorce, must be to hear and determine 191 of issues in dower, cannot direct referee to report as to admeas- urement 1 76 as to alimony and counsel fees before decree, form 311 as to necessity for sale in dower 172 on contested motion, form 218 on default in divorce 197 should be served 34 of reference on default where infant is party in partition, form. 301 of reference should state what is referred 11, 29 sole source of authority '. 11 to appoint a receiver, form 261 to ascertain damages on injunction 113 to ascertain damages on injunction, form 258 to compute, form and contents 154 to take and state account, form 250 344 INDEX. Oedee of Refebenob — to try Issues must be to hear and determine 11 when vacated after second trial t 9 under N. Y. shipping act of 1863 174 under section 21 of the assignment act 122 when set aside for misconduct of referee 68 Ordek Rbfekeing — account of assignee under assignment act, form 279 disputed claim against estate of deceased 130 disputed claim against estate of deceased, form 370 disputed claim under assignment act 124 disputed claim under assignment act, form 278 " this cause," what included 29 Oedee — settling case, form 244 to show cause why accused should not be punished for con- tempt, form 223 to take proof on default, when summons served by publication, form 255 unauthorized, of referee, court may be set aside 33 what objections to not waived by proceeding before referee 26 when proof of entry not required 10 when vacated after second trial 9 Oeiginat- Mindtbs — of trial the property of the referee 39 Papees, indorsing 74 Paeties — brought in after trial begun, not bound by proceedings had .37 entitled to notice of admeasurement of dower 177 how far competent witnesses in divorce 193 necessary not served, when objection taken 26 referee may hold case to bring in 38 Paetnbeship — action for dissolution, when referable 18 Paet of Issues, trial of 152 Paetition — Judgment in, how entered on report 184 proceedings on reference in actions for 184 purchaser in may have reference as to debts of ancestor 188 referee to sell, fees of 188 reference may be had to ascertain if for benefit of infant 94 reference on default in ...; 184 report of referee to sell in 189 validity of liens claimed in may be contested 186 when issues referable in 184 INDEX. 345 Party — accounting, may be examined on oath 98 appearing by attorney not to appear in person 35 may be examined to see if all books produced 97 Peefokmanob — of contract, must be shown on foreclosure of mechanics' lien. 173, 173 Place op Trial — may be outside of jurisdiction of court making the order 34 Plaintiff — in partition to produce abstract of title 186 Pleading — supplemental, referee cannot allow 45 Pleadings — in partition, referee bound by 187 on reference in foreclosure of mechanics' lien 173 referee may direct judgment on 36, 60 Poundage — of referee to sell in foreclosure 165 Peintees' Fees — in foreclosure, what allowed 165 Peoceedings — supplementary, proceedings on 120 Peooedtjee — when in discretion of referee ;36, 38 Peoof of Adulteey — how made 189 Peoposal of Names — for receiver, form 359 Peoposed Amendments — to case, form 343 Puechasee — in partition, when may have reference as to debts of deceased.. 188 Qualifications of referee 6, 7, 8, 190 Question — , incidental, when referred 93 of fact arising on motion, reference of 103 of law, difficult, must be stated 34 of law may be referred 4 Reaegument — new report must be made after 63 346 INDEX. Receiver — a party, does not prevent reference 26 cannot stipulate for increased fees to referee 63 of corporation, reference of controversies by 148 reference may be ordered as to validity of claims against 94 Refbebb — after allowing amendment cannot allow demurrer 45 an officer of court, can be sued only on leave given 32, 33 appointed by oliamber order no authority to try Issues 10 appointed by chamber order to try issues cannot administer oath 10 appointed by consent refusing to serve, court must appoint an- other 11 appointed by surrogate, when may sit outside county 133 appointment not vacated by reversal of judgment 9 as to alimony before decree, fees 203 as to surplus moneys, powers and duties 168 authority of court over 32 by whom selected 38, 39, 190 cannot allow amendment changing cause of action or defense... 44 cannot allow amendment setting up new cause of action or de- fense 45 cannot be compelled to reopen case for further evidence 33 cannot be compelled to take account after trying issues 39 cannot be a witness before co-referees 37 cannot change findings on settlement of case 79 cannot charge for services of third person taking evidence 65 cannot have an allowance for services 65 cannot inspect subject of action and receive explanation in ab- sence of opposing party 86, 37 cannot issue commission to take testimony 37 cannot order bill of particulars 37 cannot refuse to proceed on ground the order was Improvident- ly granted 35 cannot strike out complaint for refusal of plaintiff to appear for cross-examination 37 cannot strike out complaint for refusal to obey subpoena dv,ces tecum 87 cannot strike out part of answer 46 clerk or partner of attorney or counsel not to be 7 contents of order appointing more than one 11 court may compel to proceed on pain of removal 33 demanding more than statutory fee may be removed 68 duty in settling case 79 duty on trial of counter-claim 37 fees of, how determined 70 fees of, in surrogate's court 138 fees of, to sell in dower 183 INDEX. 347 Repeeee — fees ol, to sell in foreclosure 165 ; of, to sell In partition 188, 189 I of, under assignment act 127 fees of, when disputed must be sustained by affidavit 70 has discretion as to leading questions 36 has discretion over amendments in his power to grant 46 has discretion over number of witnesses as to character 43 has discretion over order of proof 41 has lien on report for fees 64 has not the power of the court at special term to allow amend- ments 44 has same power as court on a trial to compel a witness to at- tend, be sworn, or testify 41 having by assignment a lien on judgment for fees, cannot settle case ^ 80 if unwilling to serve for statutory fee must decline reference .... 63 in divorce, authority limited by order 191 in divorce, must be sworn 191 in dower, how appointed 176 in interlocutory references, cannot punish for contempt.... 87, 97, 98 in interlocutory references cannot strike out evidence of party who fails to appear 87 in interlocutory references, how appointed 84 in interlocutory references may adjourn hearings 86 in interlocutory references must be sworn 86 in interlocutory references, powers and duties 84 in partition, bound by pleadings 187 in partition, fees of 188 in partition, how selected 185 report of sale 189 proceedings to mortgage or sell real estate of infant 139 insisting on fees in advance may be removed 64 in special proceedings cannot punish for contempt Ill in special proceedings must be sworn Ill in special proceedings, powers and duties 110 in supplementary proceedings, how appointed 118 in supplementary proceedings may order production of books and papers 131 in supplementary proceedings must be sworn 118 in supplementary proceedings, powers and duties 119 in surrogate's court, fees of 134 in surrogate's court, powers and duties 133,134 in surrogate's court, who may not be 133 may allow adjournments 40 may allow leading questions 36 may appeal from order affecting fees 189 may appeal from order depriving him of part of fees 60 348 iNDifix. Referee — may assign claims for fees 63 may be appointed to ascertain damages after trial of issues... j8SJ, 83 may be appointed to sell under foreclosure of mechanic's lien... 74 may be appointed to superintend discovery 83 may be appointed to report order of sale 83 may be appointed to settle issues 83 may be appointed to superintend execution of judgment 83 may be appointed to take and state an account 83 may be appointed to take deposition of witness 83 may be appointed to appoint a receiver and take security 83 may be ordered to ascertain amount of attorney's fees 93 may charge for time spent in consideration of case 64 may compare signatures 43 may compel witness to show paper from which he is testifying. 43 may demand that fees be secured in advance 63 may dismiss complaint 35 may enlarge time for submission of briefs 38 may exercise discretion as to beginning trial anew after amend- ment 38 may hold case to enable necessary parties to be brought in 38 may, in action for waste, view premises 38 may, on due proof, require sealed books to be opened 97 may order books and papers to be produced 96 may order interlocutory judgment directing an account 38 may punish for contempt, when 48 may i-e-open case for further evidence 38 may report after sixty days if no notice of termination given.... 62 may reserve decision on objections to evidence 48 may strike out evidence taken on commission of witness whose answers are evasive 43 must be appointed in proceedings for sale or mortgage of real estate of infant 139 must be sworn 33 must decline reference if unwilling to accept statutory fee, and parties will not stipulate 63 must fix time and place of hearing 95 must support his charges by affidavit, when disputed 64 must sue under statute for fees 63 not bound to deliver or file report until fees are paid 62, 64 objection to, when made 9 obtaining lien on judgment cannot settle case 66 of controversy between trustee of insolvent debtor and others, how appointed 145 of controversy of receiver of corporation, powers and duties 148 of disputed claim against estate of deceased person 129 of disputed claim has no equity power 131 of part of issues, powers and duties 153 INDEX. 349 Ebfbeee — of part of issues, report 153 on default in action for divorce, by whom selected 197 on default in action for divorce, powers and duties 198 on voluntary dissolution of corporation 147 power to allow adjournments 40 power to allow amendments 44 power to punish for contempt .' 48 refusing to accept statutory fee, may be removed 11, 63 refusing to serve, remedy 28 report as to surplus moneys 169-171 report of sale in dower 183 report of sale in foreclosure, exceptions to 164 report of sale in partition 189 residence on 9 stipulation for fees for hearings does not include adjournments. 63 suing for fees must recover, if at all, under statute 63 to ascertain liens in partition must advertise 186 to admeasure dower, fees 180 to admeasure dower must notify parties 177 to admeasure dower, oath of 170 to admeasure dower, powers and duties 177 removal of 180 report, when set aside 180 to compute, by whom selected 154 to compute, need not be sworn 86, 155 to compute, powers and duties 155 to compute, report 156 to hear and determine only, can punish for contempt 48 to sell, by whom selected 157 to sell cannot be mterested in sale 160 to sell cannot vary terms of sale 159 to sell, deed of 163 to sell, deed of, form 293 to sell in actions for dower, powers and duties 179 to sell in foreclosure, disbursements of 165 to sell in foreclosure, fees of 164, 165 to sell in foreclosure, fees on settlement 166 to sell in partition 187 to sell in partition, duties as to liens 188 to sell in partition, fees of Wi to sell in partition, penalty for delaying distribution 189 to sell, sale in parcels 157 to sell, terms of sale 159 to take and state account under assignment act, powers and duties 124, 125 to take and state account under assignment act, cannot cure fail- ure to present claims 126 350 INDEX. Referee — to take and state account, who liable for foes C6 to take proof and report, cannot try issues 11 under New York banking act, how appointed 150 under section 21 of the assignment act, powers and duties... 119, 120 under assignment act, fees of 127 what constitutes misconduct of 68 what judicial officers may not be 6 when court must appoint in place of another 28 when court must designate 28 when judge may not be 6, 7 when layman may be 8 when may compel answer from witness who fears it may crim- inate him 42 when may demand fees in advance 63 when may sue for fees 64 when must be selected by court 4 when objections to must be made 26 when one objected to by all parties may be appointed 7, 8, 10, 11 when parties may select 28 when power ceases 66 who may be 6 who may not be 7, 8 Ebeerees — if more than one, all must meet and hear allegations and proofs 35 if more than one, majority may appoint hearing, or settle case . 35 increase in number, how made 28, 29 number of 6 number, when increased 28 on appeal from commissioner of highways, how appointed 141 on appeal from commissioner of highways, powers and du- ties 142, 143 what number may be appointed 28 Refbeekoe — application for, how made 22 as to alimony before decree in matrimonial actions, moving papers 199, 200 as to alimony before decree in matrimonial actions, order, form and contents 200, 201 as to alimony before decree in matrimonial actions, proceedings on 200, 201 as to alimony before decree in matrimonial actions, when, and by whom ordered 199 as to damages in dower 180 as to damages on injunctions, when ordered 113 as to liens in dower 182, 183 as to liens in partition 186 INDEX. 351 Refeeenoe- as to surplus moneys in foreclosure, parties on 166, 167 as to surplus moneys in foreclosure, what litigated 168 by consent, in what actions allowed 4 by consent, not allowed where infant a party 4 by consent, when discretionary 4 cannot be ordered to take testimony to be used on trial 82 ended by notice after sixty days 07 for examination of party before trial, proceedings on 105 for information of court, when ordered 94 how terminated 66 who may appear on accounting 136 in action for divorce for adultery, not compulsory 190 in action for divorce for adultey, report in 193 in action for separation 203 in matrimonial action other than for divorce 204 in matrimonial action, proceedings on 201 in special proceedings, when ordered 110 in proceedings against ships and vessels 174 in supplementary proceedings, procedure on 119 in surrogate's court, procedure on 136 interlocutory, how brought on 85 interlocutory, may be ordered to proceed on short notice 86 interlocutory, when ordered 82 interlocutory, witness on, must sign testimony 87 may be ordered after cause once tried by Jury 25 maybe ordered at trial 23 may be ordered for information of court 82 may be ordered on application to mark case secured on appeal. 83 maybe ordered though all issues not referable 15 may be ordered though cause once tried by jury 25 may be ordered to ascertain what should be paid to redeem property sold -. 83, 84 may be ordered to settle conflicting claim on interpleader 83 may be ordered to settle judgment 83 may be ordered to take and state account 82, 93 may be ordered when answer sets up fraud 15 not compelled in actions against trustees for failure to file re- port 14 not compelled in actions for wrongs 13 not compelled unless aetioh involves an account 15 not ordered until action ready for trial 4 not ordered when difficult questions of law involved 21 not stayed to allow examination of party before trial 33 not terminated by appointment of referee a judge 66 not terminated by order allowing amendment 66 of controversy by receiver of corporation 147 of controversy by receiver of insolvent insurance company 149 352 INDEX. Rkfekenck — of disputed claim against deceased, a special proceeding 130 of disputed claim against deceased, counter-claim cannot be set up 130 of disputed claim against deceased, how made 129 of incidental question, when ordered 93 of part of issues, when not ordered 9, 152 of part of issues, when compelled 92 of question of fact arising on motion 103 on accounting in surrogates court, who may appear on 136 on appeal from commissioner of highways 141 on application for voluntary dissolution of corporation 147 on default in divorce, proceedings on 197, 198 on default in dower, proceedings on 176 on default in foreclosure, proceedings on 153 on default in partition, proceedings on 184, 185 on mandamus to compel corporations to produce books 104 on proceedings to discover death of life tenant 140 order for, not avoided by death of referee 66 order for, not vacated on allegations of fraud on part of referee unless action could be brought 68 order for vacated if referee accepts retainer from either party... 68 order for vacated if referee has promised to decide in favor of each 68 order for, when vacated 68 proceedings on, may be stayed by court 32 refused where account is collateral 19 terminated by act of Legislature 67 terminated by filing report 66 to admeasure dower, when ordered 176 to ascertain and report in partition 186 to ascertain damages on injunction, how obtained 113 to compute in foreclosure, proceedings on 155 to compute in foreclosure, report on 156 to compute in foreclosure, when not ordered 154, 155 to examine books and papers under assignment act 122 to examine party before trial 104 to sell chattels on foreclosure of lien 107 to take and state account under assignment act 124 to take and state account, when ordered 94 to take deposition to be used on motion 100, 101 to take proof on application for judgment by default 106 when defendant admits sum due in action to foreclose lien 173 when not vacated by reversal of judgment 9 who has carriage of 94 95 References — discretionary 3 INDEX. 353 Rbfeeencbs — history of 1 in surrogate's court 133, 134 under assignment act 133 under Dutch governors 1 under section 21 of assignment act 133 when first ordered 3 Refusal to Refer — when question adjudicated 33 Remedy — against ships and vessels under act of 1863 cumulative 175 Removal — of referee for refusing to serve for statutory fees 11 Repoet — and decision on appeal from commissioner of highways, form... 364 as to alimony before decree, form 311 as to surplus moneys, form 298 as to title in partition, form 302 becomes absolute by failure to except 91 cannot be set aside to enable referee to find as to costs 70 court cannot compel successful party to take up 64 dismissing complaint without prejudice, form 336 filing in sixty days, when not essential 138 if delivered to unsuccessful party, may be ordered filed 63 in action for divorce for ad\iltery, form 307 in supplementary proceedings, form 375 in matrimonial actions other than for divorce 301 In proceedings to mortgage real estate of infant, form 271 interlocutory, exceptions to, when filed 90 may be made after sixty days if neither party has given no- tice 63 may be set aside, when 33, 67 not set aside for irregularity after judgment 69 not to be set aside for misconduct with unsuccessful party 69 Report of Referee — appointed under section 21 of the assignment act 123 appointing receiver, form 262 as to surplus moneys 169 in actions for adultery 191, 192 in actions for adultery, how confirmed 194 in actions for adultery must show no collusion 194 in actions for adultery, power of court over 195 in actions for adultery, when not confirmed 195, 196 in action to foreclose mechanic's lien 173 in action to foreclose mechanic's lien, how made and filed 173 in partition, exceptions to 187 354 INDEX. Report of Refeebb — in partition, form and contents 187 iia separation 203 in special proceedings, form and contents 112 in surrogate's court, form and contents 138 noliiinating a receiver, form 260 on accounting, form and contents 99 on accounting, how reviewed 99, 100 on accounting in surrogate's court, form 285 on accounting under assignment act, form 380 on appeal from commissioner of highwaj'S 143, 143 on controversy between trustee of debtor and another 145 on controversy by receiver of corporation 148 on default in actions for divorce for adultery, form 310 on default in divorce 198 on disputed claim, form and contents 131 on disputed claim, how reviewed 133 on disputed claim under assignment act, form 278 on examination of party before trial 106 on interlocutory references 88 on interlocutory references, how reviewed 91 on interlocutory references, where confirmed 90 on part of issues 153 on proceedings to discover death of life tenant 141 on proceedings to discover death of life tenant, form 387 on proceedings to mortgage real estate of infant 140 on trial of demurrer, form 336 on voluntary dissolution of corporation 147 referee has lien on for fees 64 referee not bound to deliver until fees paid 63, 89 to admeasure dower, form and contents 179 to admeasure dower, form 300 to admeasure dower, when set aside 178, 180 to ascertain if infant should bring partition 94 to assess damages caused by injunction 117 to compute in foreclosure, form 289 to compute in foreclosure, form and contents 156 to compute in foreclosure, how confirmed 157 to sell in dower 183 to sell chattels on foreclosure of lien 107 to settle issues, form 388 to take and state account under assignment act 136 to take and state account, form 251 to take deposition to be used on motion 102 to take deposition to be used on motion, form 253 to take evidence and report with opinion 139 to whom delivered 63 under N. Y. bankiug act 151 INDEX. 355 Report of Rbfbeee — when defendant fails to appear on the trial, form 235 when defendant has offered to liquidate damages conditionally, form 237 when set aside onmotion 68 when set aside because but two out of three referees signed the report 68,69 where increased damages are given by statute, form 237 where judgment is ordered on the pleadings, form 334 where plaintiff fails to appear on the trial, form 234 Bepoet of Sale — in dower 179 in foreclosure, foi;'m 294 in foreclosure, amendment of 164 in foreclosure, exceptions to 164 in foreclosure, form and contents 163, 164 in partition 189 in partition, form 305 Report Set Aside — for bias 67 for advising settlement, suggesting terms 68 for importunity by referee of defeated party for office 69 for receiving bond and mortgage for excessive fees 68 where impropriety is proved, not surmised 68 where referee accepts retainer from either party 68 where referee alters his opinion after showing it to party 68 where referee has promised to decide in favor of each 68 where referee hears evidence without notice to both parties 68 Requests to Find — form 231 making and serving 50 rufings on 51 Resettlement — of case, how obtained 79 Resale — contents of nbtice 168 when ordered ICo Reversal — of judgment on report, when reference not vacated by 9 ROWBOAT — not a vessel within N. Y. act of 1862 174 Ruling — on objection to evidence, a matter of right 43 356 INDEX. Sale— in dower, how made 183 in foreclosure, report of 163 in foreclosure, when reference may be ordered to report order of 83 in parcels, order of sale 158 in parcels, when ordered 158 in partition, how conducted 187 may be adjourned 162 of chattel on foreclosure of lien thereon 108 or mortgage of real estate of infant, reference on proceedings for 139 Scandalous — or impertinent matter, referee may strike from account 99 Schedules — to report on account 99 Sbaeohes — in partition, for what time necessary 187 Separation — action for referable only by consent 4 defenses in action for 304 for what causes allowed 303, 204 references in actions for 303 when not allowed 303, 204 Sbveeal Parcels — assignment of dower in 178 Sheriff's Return — to warrant of attachment, form 237 Ships and Vessels — references, in proceedings against 174 Sittings — may be held where parties reside 11 Special Proceedings — references in HO reference of disputed claim is 130 report of referee in 113 Special Term — may set aside order of referee exceeding his authority 70 Speedy Trial — at circuit possible, may defeat reference 35 INDEX. 357 Stenogeaphee — fees, included In costs only by stipulation 71 when court may order minutes of filed 39 Stipulation — as to fees, form 330 for fees, contents 63, 63 for fees, courts no control over in the absence of fraud 63 nominating referee if motion for reference is granted, form 317 to defeat reference, court may control 37 to defeat reference, form 317 to refer, contents 6, 11 to refer, pursuant to order granting a favor, form 319 when should name referee 6 SnBPCEKA — by whom issued in actions 41 by whom Issued in special proceedings Ill to appear and give evidence, form 331 to appear and produce books and papers, form 231 to attend on appeal from commissioner of highways, form 367 Summons — on reference as to surplus moneys, form 297 to attend before referee, form 247 to attend on reference to appoint a receiver, form : 259 Supplemental Pleadings — referee cannot allow 45 SUPPLEMENTAET PEOOEEDmGS — taking testimony on 120 what testimony competent on 120 Surplus Moneys — in foreclosure, dower in 179 in foreclosure, preferred claims to 170 in foreclosure, creditor may attack conveyances on reference as to 169 in foreclosure, what claims considered 168 in foreclosure, who entitled to 168, 169 Sueeogatb's Couet — references in 133, 134, 135 SUEVETOB — to admeasure dower, when employed 177 to lay off lands in dower, fees of 180 358 INDEX. Taxation — of fees of referee 64 Taxes — on land claimed in dower, by whom paid 181 Tenant — when cannot object to admeasurement of dower 178 Teems— of adjournment, referee may fix 41 of amendment, referee may fix 47 of sale in foreclosure, form 291 Testimony — to actions for divorce, must be signed 193 on supplementary proceedings, how taken 120 Time and Place of Tkial — referee should fix 34 TOKT— reference not compelled in action lor 13. 14 Teial— before referee, how Conducted 35 of part of issues by referee, when ordered 83 , where had 9 Two Actions involving same questions, trial of 37 Undertaking to procure discharge, form 226 Use of permanent improvements made after death of husband not given in damages in dower 180 Valtib of premises claimed in dower, when ascertained 178 Vaeianoe — immaterial, referee may disregard 45 VOUOHEES — loss of may be proved 98 to accounts, to be produced 98 Waivbe— of irregularity, how made 67 of irregularity in notice of hearing, what is 34 of oath of referee, form 220 of oath, what constitutes 33 of objection that cause is not referable, what is not 10 of objection to amendment, what is 47 of objection to order stating what evidence shall be taken, what is 38 INDEX. 359 Waeeant — of attachment on order to show cause, form 325 Waste — in action for, referee may view premises 38 Widow — assignment of dower to, when she redeems from mortgage 179 when not chargeable with assessments 179 WiFB — when competent witness in divorce 191 Witness — failing to appear for cross-examination, remedy for 43 may be compelled to produce books and papers 41 referee may be appointed to take deposition of 83 Witnesses — as to character, number in discretion of referee 36 WoEK, Laboe and Seevioes — matters of account 17 Weong — incidentally alleged does not prevent reference 15 reference not compelled in action for 18