OJnrnrU iCaui irltnnl ICibrary Cornell University Library KFN6049.C77 The law and practice of referees and ref 3 1924 022 785 285 Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924022785285 THE LAW AND PRACTICE 07 Eefeeees and Reeeeences UNDBE THE CODE OF CIVIL PROCEDURE AND STATUTES OF THE STATE OF NEW YORK. WITE FORMS. BT MORRIS COOPER, OP THE HEW TOBK BAB. NEW YORK : DIOSST & COMPANY, Cam |)cblt0l)jcr». 1888. B?>i^T^ Entered according to act of Congress, in the year 1888, By MOBKIS COOPEB, In the office of the Librarian of Congress at Washington. PREFACE. This work is an attempt to bring within as small a com- pass as is consistent with clearness of statement, all the existing law relating to the practice before referees. Sub- stantive law is omitted. The author's endeavor has been to write a practical book, susceptible of ready use at references, -or in preparation for the same. The forms have been mainly taken from decided cases, but it is desired here to express a deep sense of obligation entertained for the help derived from Mr. Austin Abbott's Forms,* most of which have passed into, and become a part of the settled jurisprudence of the State. For many valuable suggestions the author renders thanks to Hon. Eastus S. Hansom, Surrogate of New York county, and to Mr. Elliot Sandford, and for very useful assistance rendered in the preparation of the work, to Messrs. Gilbert D. Lamb and Albert H. Atterbury. MOEEIS COOPEE. Broadwat Bank BurLDiNa, New York City, July, 1888. * By permission from " Abbott's Forms of Practice and Pleading." [iu] INTRODUCTION. iBRIEF HISTORY OF LEGISLATION, AUTHORIZING COM- PULSORY REFERENCES TO HEAR AND DETERMINE IN THE STATE OF NEW YORK. Chief Justice Daly in Magown v. Sinclair, 5 Daly, 67, «peaking of this mode of trial, says : "The practice came into use when New York was a colony under the Dutch, and was continued after the conquest of the colony by the English, as a more satisfactory mode of procedure for the investigation of matters of account, than upon a trial by a jury. The Dutch, as was the usage in Amsterdam, referred the settlement of all such matters of account to three per- isons called arbitrators, and like some other Dutch usages or laws, was continued for many years after New York became an English colony, these three persons being sometimes called arbitrators and sometimes referees." Tlie Cl:arter of Liberties and Privileges, enacted in 1683, sanctioned, however, only trials by jury, and as a conse- quence there was no method of trying actions involving the examination of long accounts, except by the tedious and expensive common law action of account. The latter was so dilatory an affair that it fell into disuse, and jury trials in assumpsit were resorted to. The juries complained of the burdens to which they were subjected in being obliged to unravel long and intricate accounts, and in 1768, the first • fitatnte we had on this subject was enacted. In that year there was passed ' ' An Act for the better Determination of Personal Actions depending upon Accounts (2 Yan Schaack's [V] VI INTRODUCTION. Laws, 517). This statute authorized the supreme court^ with or without the consent of the parties^ to refer actions requiring the examination of long accounts on eitiier side. Actions by or against executors or administrators were exchidcd from the effect of the provisions. In 1788, was passed " An Act for the Amendment of the Law and the better Advancement of Justice" (2 Greenleaf L. page 102), which provided, that if it appeared in any cause, that the trial would require the examination of a long account the court, after issue joined, could, with or without consent, refer the cause to referees. In 1813 an act of the same title as the foregoing was passed (1 R. L. 516, § 2), providing for a compulsory refer- ence of the issues to three persons, in actions involving long accounts. In 1829 the first edition of the Kevised Statutes contained the following provision (part 3, chapter 6, title 6, art. i,. § 39) : " Whenever a cause shall be at issue in any court of record^ and it shall appear that the trial of the same will require the examination of a long account, on either side, such court may, pn the application of either party, or without such application, order such cause to be referred to three impartial and competent persons." The second edition of the Kevised Statutes (1836) con- tained the same provision. The third edition of the Revised Statutes (1846) con- tained the following provision (part 8, chapter 6, title 6, art. 4, § 41): " Whenever a cause founded upon contract shall be at issue in any court of record, or a default for want of a pica shall be entered, and it shall appear that the trial of the same, or the assessment of damages therein, will require the examination of a long account on either side, such court rafxy, on the application of either party, or without such application, after issue joined, on tlie application of the plaintiff after default entei'cd for want of a plea, order such cause to be referred co three impartial and competent persons, or by the consent of the parties, to a sole referee. INTRODUCTION. Vll The Code of Procedure as passed in 1848 provided: § 225. " All or any of the issues in the action, whether of fact or of law, may be referred upon the written consent of the parties. § 2'2G. "Where the parties do not consent, the court ma)-, upon the application of either, or of its own motion, direct a reference in the following cases: (1) Where the trial of an issue of fact shall require the examination of a long account on either side; in which case, tlie referees may be directed to hear and decide the wliole issue, or to report upon any specific question of fact involved therein :" or, (2) . . . . taking an account. (3) . . . . questions of fact arising on any stage of the action. §§ 225-226 of the Code of Procedure of 1848 became §§ 270-271 of the amended Code of 1849, as follows : § 270. '' All or any of the issues in the action, whether of fact or of law, or both, may be referred, upon the written consent of the parties. § 2V1. " Where the parties do not consent, the court may, upon the application of eitiier, or of its own motion, except where the investigation will require the decision of difficult questions of law, direct a reference in the following cases: (1) Whei-e the trial of an issue of fact shall require the. examination of a long acconnt on either side; in which case, the referee may be directed to hear and decide the whole issue or to report upon any specific question of fact in- volved therein ;" or (2) . . . . taking an account. (3) . . . . questions of fact arising on any stage of the action. Tims the law remained until the Code of Civil Procedure went into effect (Sept.-1877), which provided : § 1013. " The court may, of its own motion, or upon the application of either party, without the consent of the other, direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account, on either side, and will not require the decision of difficult VIU INTKODUCTIOK. questions of law. In an action, triable by the court, with- out a jnry, a reference may be made, as prescribed in this section, to decide the whole issue, or any of the issues; or to report the referee's finding, upon one or more specific questions of fact involved in the issue.' This section has not been amended since its enactment and is the law at the present time. There have been no substantial changes in the statutes relative to the matter in hand since the amended Code of 1849, but the statutes as enacted have been inserted here to enable any reader who may desire to do 60, to trace the law right down to the present time. For the history of references to hear and determine the issues, consult Magown v. Sinclair, 5 Daly, 63 ; Batchelor V. Albany City Ins Co., 6 Abb. Fr. N. S. 240. TABLE OF CONTENTS. PART I. Eefeeences to Hear akd DETBEMiisrE the Issues, CHAPTER I. References on Consent 1-6 CHAPTER II. Compulsory References 7-2T CHAPTER TIL Motion for a Reference of the Issues -.28-32 CHAPTER IV. Opposing a Reference of the Issues S3-34 CHAPTER V. Appointment and Selection of the Referee 35-41 CHAPTER VI. Order Referring the Issues 42-48 CHAPTER VIT. Bringing on the Reference of the Issues 49-54 [ix] X TABLE OF CONTENTS. CHAPTER VIIL Pag» Securing the Attendance of Witnesses and the Production of Books and Papers 65-60 CHAPTER IX. The Referee's Oath 61-64 CHAPTER X. Matters Preliminary to Swearing the Witnesses 65-6& CHAPTER XL Swearifag the Witnesses 70-72 CHAPTER xn. The Reception of Evidence 73-81 CHAPTER Xni. Motions at the Close of the Evidence 82-85 CHAPTER XIV. Requests to find 86-92 CHAPTER XV. The Referee Deliberating upon the Case » 93-101 CHAPTER XVL The Report 102-119 CHAPTER XVn. The Judgment 120-122 CHAPTER XVm. Filing and Serving Exceptions 123-126 TABLE OP CONTENTS, XI CHAPTER XrX. Page Settling the Case and Exceptions for the Purposes of an Appeal. 12T-188 CHAPTER XX. Appeal from Judgment Entered on Referee's Report 139-1 49- CHAPTER XXL Control over the Reference other than Review by Appeal 150-157 CHAPTER XXII. The Fees of Referees in References to Hear and Determine. ...158-166 CHAPTER XXIIL The Referee's Minutes and the Stenographer 167-168 CHAPTER XXIV. Contempt 169-187 PART II. Inteelocutokt Eeeeeences. CHAPTER 1 Provisions Generally Applicable 188-198- CHAPTER XL Specific Interlocutory References 199-214- XU TABLE OP CONTENTS. PART III. Miscellaneous EEFBEEifCBS undeb the Code op Civil Peoobdube. CHAPTER L Page "References to Foreclose Mortgages on Real Estate. 216-246 CHAPTER 11 ■References in Partition Suits 247-252 CHAPTER m. References in Actions for Dower 253-25G CHAPTER IV. References in Proceedings to Sell the Lands of an Infant, Lunatic, Idiot or Habitual Drunkard 257-260 CHAPTER V. Miscellaneous References to Sell Real Property 261 CHAPTER VL References in Matrimonial Actions 262-288 CHAPTER VH. References on Applications for Alimony and Counsel Fees 289-298 CHAPTER VIIL References in Supplementary Proceedings 299-311 CHAPTER IX. References in Proceedings to Discover the Death of a Tenant for Life 812-318 TABLE OF CONTENTS. xiil CHAPTER X, Page References in Surrogates 'Courts 319-823 CHAPTER XL References in Proceedings for the Voluntary Dissolution of a Corporation 829-338 PART IV. EEFEBENOEa rriTDEB Statutes other than the Code of Civil Peooedfke. CHAPTER I. References of Disputed Claims against Deceased's Estate 389-343' CHAPTER II. References under the General Assignment Act of 1877 349-359' CHAPTER III. References upon Appeals from Commissioners of Highways. ..360-365 CHAPTER IV. References under Mechanics' Lien Law * . . . . 866-371 CHAPTER V. References under the Act Providing for Raising Funds to Build or Repair Bridges 872, 373 CHAPTER VL References in Supplementary Proceedings for the Collection of Taxes 374, 37& SXV TABLE OF CONTENTS. CHAPTER VII. Paga Heferences in Proceedings to Sell the Real Estate of Religious Corporations 876, 877 CHAPTER VIIL References under the Revised Bank Law 878, 879 CHAPTER IX. References on Appeal from Order of County Court under the Act Providing for the Incorporation of Plank Road Companies. . . .880 CHAPTER X. References under the Act for Closing up Insolvent Mutual Insur- ance Companies 381, 382 CHAPTER XI. References on Application of Trustees of Insolvent Debtors. . . 383, 384 CHAPTER XII References as to the Validity of Liens for Claims against Ships and Vessels 885 TABLE OF CASES CITED. Page Ackerman v. Ackerman, 214 Accessory Transit Co. «. Garri- son, 53 Adams b. Bayles, 25 V. Bush, 152 V. City of Utica, 16 ». Kellis, 99 ■B. N. Y., Lake Erie, etc., E. E. 168 Ager «. Ager, 269 Akely «. Akely, 841 Albany City Bk. o. Schermer- horn, 179 Allen i>. Allen, 290 ®. Starring, 301 v. Way, 78, 108 American Corrugated Iron Co. _ I. Eisner, 148 American Ins. Co. ■». Oakley, 234 Amsd ell ». Martin, 214 Andrews 0. Glenville, 211 Anonymous, 25, 33, 227 Arborgast v. Arborgast, 269 Ashley ». Turner, 310 Atochia v. Garcia, 9, 24 Attorney-General v. Continental Ins. Co., 115, 196 Austin B. Ahearne, 190, 251 Avery v. Foley, 105 V. Smith, 348 Ayrault ®. Sackett, 74, 93, 95, 119 Pago Bache n. Doscher, 238 Backus V. Smith, 140 Bailey «. Bergen, 108 Baird v. Mayor, 12, 38, 46, 46, 152, 153 Baker v. Baker, 282 V. Walsh, 21 Baldwin v. Van Dusen, 144 Ball «. Parsons, 118 Banc V. Neusa, 88 Bancker v. Mayor, etc., 141 Banfleld v. Eumsey, 341 Bannister, Matter of, 113 Banta v. Banta, 65 Bantes v. Brady, 107, 197 Barber v. Cromwell, 30 Bard u. Steele, 224 Baring ». Moore, 234 Barker v. White, 109, 146 Barne v. Neuss, 119 Barnes ». West, 8, 12, 217 Barrere v. Barrere, 281 Barron v. Sanford, 205 Barton v. Fisk, . 212 V. Herman, 11, 22, 28, 47 Bates V. Eagleton Mfg. Co. 28 Battell V. Torrey, 258 Batzel V. Batzel, 282 Beach v. Eaymond, 74, 77 Bean v. Edge, 85 Beardsley v. Dygert, 22 [XV] S.V1 TABLE OP CASES CITED. Page Bearup v. Carraher, 124 Bell V. Mayor, etc., 14 V. Vcrnoy, 4 Belmont v. Smith, 196, 197 Bensel v. Gait, 24 Benn v. First Nat. Bank, 17 Bennett, Matter of, 195, 214 V. Agricultural Ins. Co., 141 «. Buchan 105 Berg V. Rottek, 162 Bergen v. Carman, 243 «. Snedeker, 243 Berrian v. Sanford, 77 Bicknell v. Byrnes, 232, 2.34, 2S8 Bigler v. Barnes, 144 Bihin c. Bihin, 76, 287 Billings V, Baker, 151 «. Vanderbeck, 39 V. Vanderbrek, 52, 150 Bingham v. Disbrow, 303 Birdseye «. Goddard, 115, 116 Bishop V. Stebbins, 148 Bissell V. Lee, 50 V. Whipple, 15 Blackstone Nat. Bank v. Bo- gart, 17 Blake v. Mfg. Co. 51 Bliss V. Bliss, 284 Bliss, Matter of, 39 Bloore v. Potter, 4 Blott B. Rider, 277, 278 Bohm, Matter of 190 Bokel V. Bokel, 269 Bolton V. McOullough, 30 Bonesteel v. Lynde, 187 Bonner v. McPhail, 8, 44, 51, 72 Bonyuge v. Field, 168 ». Waterbury, 168 Borland v. Alleond, 245 Bortle V. Mellon, 124 Bouton i>. Bouton, 121, 190 Bowman v. Sheldon, 27 Bowne v. Leveridge, 194 Boyce v. Comstock, 209 Bradley v. Eager, 26 Bradley v. McLoughlin, Brady «. Kingsland, Brewer ». Irish, Bridge i>. Penniman, Briggs V. Boyd, Brockett v. Bush, Page- 106- 239 124 46. 124 341 Brooklyn, etc., R. R. Co. v. Reid, 17 Brooks V. Christopher, 76, 148- ». Shultz, 208 Brower v. Eingsley, 111, 113, 119 Brown v. Bradshaw, 9' ®. Mayor, 196, 214 «. Windmuller, 163, 164, 165 Brown, Matter of, 857, 35a Browning v. Marvin, 61 Bryan v. Brennan, 46 Bryce, Matter of, 85T Buchan «. Rintoul, 321 Buchanan v. Cheesebrough, 11 Bucklin v. Chapin^ 4, 343 Budlong V. Lewis, 88 Burdock b. Hale, 108 Burgess -o. Simonson, 146 Burnett ®. Gould, 343- «. Phalon, 187 •B. Snyder, 205 Burrows, Exparte, 186 Burrows i>. Dickinson, 40, 97, 154 Bushnell v. Eastman, 19 Butler «. Johnson, 344 ®. Truslow, 148 Byrne v. Delmater, 27 Byrne v. Groot, 164, 165, 167 Cagger «. Lansing, 103- Cameron v. Freeman, 20, 203 Cam]) V. Ingersoll, 18, 46, 217 Campbell v. Seaman, 122, 370- Canavan v. McAndrew, 307 Canzi o. Conner, 135 Carhart v. Blaisdell, 348 Carpenter v. Wright, 210- Carr v. BerdoU, 38 Carroll v. Lufkins, 37, 40, 153, 151 TABLE OF CASES CITED. XVll Page Carter v. Wallace, 148 Cassedy ®. "Wallace, 240 .Gatlin v. Adirondack Co., 89, 67,143 Catlin ®. Oatlin, 74, 76, 153, 196 Catlin ». Martin, • 145 Chamberlain e. Dempsey, 223, 370 Champlia v. Stoddart, 307 Chapin v. Dobson, 84 Chapman v. Lemon, 209 Charlton's Case, 187 Chase V. Jumes, 169, 160, 161 Chatfield v. Hewlett, 190 Cheeseman ». Wiggins, 107 Chessman v. Merkell, 76 Chittenango, &c. v. Stewart, 98 Chittenden, Matter of. 195 Christensen i). Colby, 141 Chubb V. Berry, 31,40 Chubbock v. Vernam, 141 Church V. Erbeu, 104 Clafiin V. Drake, 19 V. Farmers', &c. Bank, 44 V. Meyer, 79 Clapp V. Clapp, 159 Clark V. Clark, 150 V. Donaldson, 183, 147 V. Fraser, 111 V. Phelps, 364 Clay V. Clay, 269 Cleaveland v. Hunter, 73, 94 Clegg V. Aikens, 168 Cleveland v. Strong, 30 Collins V. Collins, 296 Colton V. Simmons, 165, 167 Col well B. Lawrence, 145 Comstock «. Olmstead, 343, 348 Conley v. Petrie, 39, 150 Continental Bank Note Co. V. Industrial Exhibition Co .,30 Converse i). Miner, 342 Conway i). Hitchins, 29 Cook V. Whipple, 141, 145 Cooley V. Decker, 112 i: Huntington, 63 Coope B. Bowles, 119 B Page Cooper, Estate of, 321, 324 V. Bowles, 870 •B. Felter, 340 «. Newland, 224 Cordier v. Cordier, 12 Cornelius b. Barton, 114 Corning v. Baxter, 220 V. looker, 306, 308 Countryman v. Norton, 36, 41, 154, 344 Cowdon V. Teale, 17 Cowon ®. Village of West Troy, 124 Cram v. Bradford, 218 Crane v. Bodouine, 144 Crawford v. Everson, 125 Currie v. Cowles, 103, 106, 121 Currier, Matter of. 102 Daily a. Gescheidt, 17 Dana v. Howe, ,152 Dane v. Liverpool & London Ins. Co., 25, 28, 217 Davie v. Van Wie, 12S Davies v. Davies, 205 Davis V. Allen, 152 1). Coddington, 47 V. Leopold, 90, 144 V. Richards, 153 Day n. Jameson, 21 Dean v. Empire State Mutual Ins. Co., 30, 47 Dederiok », Richley, 22 DeGraff v. Mackinley, 28 Delafield ». DeGrauw, 74 De Llamosas d. De Llamosas, 293, 294, 295, 296, 297 Denny, Matter of, 384 Derham v. Lee, 145 Devlin v. Mayor, 24, 39, 99, 141), 159 Dewey v. Field, 13, 22, 34 Dias V. Merle, 187 Dickinson ». Dickey, 229 V. Mitchell, 16, 17, 46 Diddell v. Diddell, 2,2.4 xvm TABLE OF OASES OITED. Page Dicdriok b. Eichley, 4 Diossy v. West, 803 Disbrow v. Garcia, 211 Dittenlioefer ■». Lewis, 16, 47 Dobbs 11. Dobbs, 269 Dolan -0. Merritt, 105 Donnelly i). Donnelly, 38 Donobue «. Cbamplain, 162 Dorlon «. Lewis, 95, 154 Dorr •». Noxon, 105,308 Douglas V. Douglas, 124, 128 Dow V. Darragb, 74 Draper v. Day, 190 Drury «. Wigg, 77, 105 Dugin v. Ogilvie, 74, 93 Dumont v. Nicholson, 106 Durant v. O'Brien, 37, 41, 153 Durliin as Admin, w. Sharp, etc. 23 Dustin ». Wallace, 18, 25 Duteher«. Wilgus, 29 Dwigbt D. St. John, 12, 204, 205 Dwyer c.Dwyer, 253 ■». Hoffman, 114 Early v. Eariy, 298 East River Nat. Bk. v. Gove, 144, 149 Egbert v. O'Connor, 45 Ehle V. Moyer, 97 Eighmy v. People, 43, 71 Elliott ». Lewis, 12, 46 Ellsworth v. Brown, 67, 159 Elwell 1}. Robbins, 245 Emmett v. Bowers, 99 Empire B'Id'g. etc., Assn. d. Stevens, 197 Enos II. Thomas, 10, 29, 152 Erickson v. Quinn, 141 Erie Ry. Co. «. Champlin, 208 Everett v. Hoffman, 225 Everitt ii. Huffman, 220 Everit, Matter of, 357 Exchange Fire Ins. Co. i). Early, 62, 63, 193, 219, 220, 223 Page Fairbanks v. Fairbanks, 269 Faircbild, Matter of, 359 Fallon 11. Lawler, 103, 144 Farmers' Nat, Bk. ■». Houston, 190 Farrell Foundry v. Anvil Horse, etc., Co. 18 Peeter «. Harter, 31 Fellows V. Northrup, 146 Felt n. Tiffany, 8, 17 Ferguson v. Hamilton, 128 Field V. Field, 141, 340 Fieldon v. Lahens, 74, 129 Finch v. Parker, 145 First Nat. Bk. •». Levy, 109, 152 V. Tomajo, 160, 161 Fischer v. Raab, 114 Fish ». Wright, 29 Fitzpatrick v. Plagg, 211 Flanders v. Crolius, 141 ®. Odell, 26 Fobes V. Meeker, , 187 Forbes «. Frary, 53 «. Willard, 307 Ford «. Ford, 151 Forrest u. Forrest, 12, 58, 151 Forsyth v. Rickenbrode, 88 Foster v. Bryan, 114 V. Persch, 145 Fowler e. Fowler, 294 Fox 11. Fox, 26 ' 11. Moyer, 193 Francisco v. Fitch, 842 Frazer ii. Hunt, 84 Freeman t>. Atlantic Mut Ins. Co. 18, 27 French v. French, 187 Frcudentbal v. Davis, 191 Friedman n. Bierman, 90 French ii. Powers, 130 Frost 11. Smith, 128, 148 Fuller !). Coude, 108, 142 11. Squier, 106 Fullmer v. Fullmer, 153, 283 Gade ■». Gade, 124 TABLE OF CASES CITED. SIX Page •Galinger «. Galinger, 295 •Oansovoort ®. Nelson, 340 Garcie ». Sheldon, 45 Gardiner i>. Schwab, 88, 134 ■Gardner «. Gardner, 148 V. Luke, 250 Oauhn «. Mills, 371 Gautier D. Douglas Mfg. Co., 197 Gcib v. Topping, 114, 115, 166 ■Gibson v. Pearson, 74 V. Stetzer, 77, 123, 142 Gilbert v. Comstock, 344 -GiUiland v. Campbell, 109 Geston v. People, 71 Glacius V. Black, 106, 145 Nodding V. Porter, 113, 195, 341, 344, 345 ■Goodrich v. Goodrich, •44, 284 Goodyear v. Brooks, 9, 25, 218 ■Godfrey v. Moser, 144, 147 «. Williamsburgh City Fire Ins. Co., 8, 27 •Goldsmith, Matter of, 357 -Gorham v. Ripley, 341 Gormerly.®. McGlynn, 88, 134 -Gott V. Owen, 40 Gould v. Chapin, 110 Gove V. Hammond, 105 ■Graham v. Seloyer, 145 V. "Wood, 28 ■Grattan v. Metropolitan Life Ins. Co., 84 XJraves v. Blanchard, 43, 109 V. Lake, 306 Gray, Matter of, 344 Oray v. Fisk, 95, 153 v. Fox, 47 Green v. Brown, 152 e. Bullard, 301 Xjreene v. Greene, 287 Greenwood v. Marvin, 154, 159 Gregory «. Campbell, 225, 238 -Grocers' Bank v. Penfield, 147 jGrifflng v. Gardiner, 197, 213 Pnge Hale V. Swinburne, 17, 27, 36 Hall V. U. S. Reflector Co., 21, 25 llalsey i). Carter, 114 Halstead v. Halstead 250 Hammond v. Hammond, 293 Hancock v. Hancock, 121 Hanover Fire Ins. Co. n. Tom- linson, 238 Harden v. Oorbett, 17, 24, 47 Harding «. Harding, 284, 287 Harlem Bank v. Todd, 94, 154 Harpers. Harper, 284 Harrington v. Bruce, 24, 46, 47 Harris «. Norton, 52 V. Ely, 220 «. Mead, 16 v. Van Wart, 131 Harrison ». Bockee, 148 Hart V. Trotter, 40, 51 Hartwell «. Alberst, 18 Hatch «. Stewart, 344, 347 «. Fogerty, 130 D. Wolf, 47 Hathaway «. Russell, 107 Hawkins v. Avery, 10, 33 V. Bradford, 112 Hecker ii. Fowler, 1 Heerdt«. Wetmore, 77, 187 Heim v. Link, 142 Hepburn •o. Montgomery, 125 Herforth v. Hcrforth, 294 Herschell v. Rogers, 162 Hewitt V. Howell, 209 Hewlett «. Wood,: 248 Heyer v. Deaves, 231 Hickok v. Bliss, 141 Hill V. McReynolds, 220 Hobart-B. Hobart, 140 Hoffman v. Burke, 234 •B. Hoffman, 298 V. Sparling, 23, 48 Hogan V. Laimbeer, 77 Holbrook, Matter of, 357, 358 Holden v. N. Y. and Erie Bank, 76 XX TABLE OF CASES CITED. Page Page- Hollister v. SpafEord, 300 Judson, In re. i8r Holmes v. Bennett, 21, 28 V. Gray, 165 V. Slocum, 67 Juliand v. Grant, 99, ISO- V. Wood, 145 Hoogland v. Wright 148 Kain «. Delano, 18, 30, 4& Hopkins v. Lott, 348 Kane v. Oortesy, 145 Horn V. Doody, 209 Kat B. Germania Fire Ins . Co., Horrocks v. Thompson 168 40, 62, 6S Hossack V. Heyerdahl, 14, 47 Kaufman v. Thrasher, 304 Howe V. Muir, 110 Kearney v. McKeon, 165 V. Welsh, 187 Keator v. Ulster and Delaware Machine Co. v. Edwards, 8 Howell ■». Biddlecom, 148 .V. Kinney, I65 Howland v. Woodvuflf, 133 Hotchkiss «. Mosher, 105 Howard ■». Sexton, 61 Hoyt «. Bonnett, 340 11. Hoyt, _ 142 Hubbell V. Meigs, 144 ». Schreyer. 371 Hudson «. Plet, 307 Huelet «. Reyns, 196, 205 Huffman d. Burke, 230 Hughes V. Griffith, 82 Hulbert «. McKay, 243, 244 Hull V. Allen, 17, 18 Hunt V. Bloomer, 124 Hussey v. Mayer, 119 Hustcd V. Dakin, 243 Hyatt ». Roach, - 26 Hyde, Matter of, 313 IngersoU v. Smith, 131 Ingraham v. Gilbert, 103 Ingrem v. Mackey, 328 Ives V. Vandewater, 25 Ives, Matter of, 358, Jackson v. Ives, 52 James v. Cowing, 88, 90 Jansen v. Jansen, 29 ®. Tapping, 10 Jarvis v. Jar vis, 105 Je-v*cll ®. Vdn Stoenburgh, 133 Johnson v. Swart, 40, 153 Plank Road Company, 4 Keef, Matter of, 32& Koeler v. Poughkeopsie and Salt Point Plank Road Co., IS- Keep ». Keep, 9> 2i; Kelly V. Charlier, 204 ■». Israel, 230, 231 «. Searing, 218, 224 Kemple e. Darrow, . 142 Kennedy v. Shilton, 45 Kent ». Quicksilver Mining Co., 197 Kerslake v. Schoonmaker, 76 Ketcham i). Clark, 203 Kissam v. Hamilton, 112, 119 Kiersted v. West, 148 V. Orange, &c. R. R. Co., 139, 148, 152 Killian v. Washington, 205 King, Exp., 186 v. Flynn, 186 V. Leighton, 208 Kingsland v. Chetwood, 244 Kingsley v. City of Brooklyn, 24 Kirby ■». Fitzpatrick, 244 Knowles v. De Lazare, 304 Koch V. Purcell, 22S Knapp V. Burnham, 223 V. Fowler, 84, 151 Knickerbocker v. Eggleston, 230 Kranz, Matter of, 328 Kraus, Matter of, 159 Krill 1). Brownell, 348 Lane v. Borst, 105 TABLE OF CASES CITED. XXi Lang V. Frost, Langley v. Hickman, Lanning ®. Swarts, Lathrop v. Bramhall, «. Clapp, Lawless v. O'Mahoney, Lawrence v. Ely, V. Lawrence, Page 108 53 341 76 307 17,47 152 294 Lawton v. Greene, 210, 211, 212 V. Sager, 245 Leach v. Kelsey, 77 Leaycroft v. Fowler, 3 Lee V. Tillotson, 1, 102 Lefflngwell, Matter of, 196, 327 Lents V. Craig, 234 Leonard «. MuJry, 115, 129, 153 154 Levy B. Brooklyn Fire Ins. Co., 27 Lewellyn v. Lewellyn, 286 Lewis V. Grieder, 142 «. L'ving Fire Ins. Co., 27 Lincoln v. Lincoln. 45, 193, 205, 2'83, 284 Litcli v. Brotherson, 94 Litchfield v. Burwell, 5 Little V. Bigelow, 30 V. Lynch, 115 Livermore v. Bainbridge, 96, 154 Livingston v. Gidney, 114 Lobdell V. Lobdell, 145 Lockwood V. Fox, 239 Loonam v. Myers, 74, 77, 88, 93 Lord V. Connor, 18, 30 Louns V. Louns, 265 Low V. Hallett, 34 Ludington v. Taft, 44, 106, 109 Ludlow V. American Nat. Bank, 47 Lusher v. Walton, 33 Macpherson v. Ronner, 153 McAndrew ®. Place, 11 McAndrew v. Whitlock, 103 Me Arthur v. Groot, 164, 167, 165 McCall «. Moschowitz, 13 Pa;;e McCarthy v. Graham, 228 McCracken v. Valentine's Ex. 223 McCleary v. McCleary, 44, 284, 286' McCrea v. McCrea, 282 McCue s. Tribune Assn. 208 McCuIlochB. Wellington, 102 McCulIough V. Brodie, 14 McDanold v. Titus, 145 McDermott v. Hennessy, 245 McDonnell v. Stevens, 14, 18 McEvoy, Estate of, 327 McGowan v. Newman, 62, 193, 219, 22a Mcllvaine, Matter of, 258 Mclnroyi). Benedict, 50, 65, 111 McLean v. East River Ins. Co. 25, 27 V. Tompkins, 370 McMahon v. Allen, 8 McMaster v. Booth, 13, 22 McNish 1). Bowen, 133, 134 Magown v. Sinclair, 19, 25 Main «. Pope, no Malcolm s. Foster, 61, 152 Manley v. Ins. Co. 104, 147 Mann v. Mann, 292 Mantle «. Myle, 114 Marckwald v. Ocean, etc., Co. 133 Marie v. Garrison, 151 Mark v. City of BuSalo, 162, 1G7 Marklin, Matter of, 350 Marks v. Kinney, 78 Marsen v. Phila. etc., Co. 21 Marshall v. Meech, 205 Marston «. Johnson, 103 Martin v. Hodges, 196, 197, 204, 244 t. Windsor Hotel Co., 8, 26, 38, 43 Maryott v. Thayer, 17 Mason v. Leo, , 304 Masten v. Budington, 5, 148, 344 Masterton v. Howell, 15 Mathews v. Jones, 44, 67 5. Murchison, 211 xxu TABLE OF CASES CITED. JIntthews v. Coe, 142, 146 Miiy J). May, 234 ■B. Moore, 4 Mayer v. Gilligan, 344 Mfiyor 1). Genet, 8, 18, 38 v. Ei'ben, 124 V. Tenth Nat. Bank, 18, 25 Mead v. Shea, 124, 147 D. Smith, 138 B. Tuckerman, 163 Mechanics', etc., Eanka. Healy, 307 Mclendy n. Bice, 142 Mercer ?. Vose, 76 Merrill v. Merrill, 284 Merritt ». Merritt, 298 B. Vigelius, 16, 26 Mersereau v. Ryersa, 108 Mesick V. Smith, 30 Metcalf V. Baker, 66, 148 V. Mattison, 146 Methodist Episcopal Church v. Jaques, 203 Methodist Churches v. Barker, 213 Meyer b. Meyer, 278 Meyers v. Betts, 78, 108 Miller i). Hooker, 17 Mills V. Thursby, 22, 106, 145 Miner -d. Gardiner, 18 Jlobrraan v. Bush, 50 Jlonell V. Marshall, 147 Monvoy v. Monroy, 293 Mooney v. Loughlin, 14' Moore v. Hamilton, 98 V. Jlfiore, 278 Moran v. McLarty, 147 Morange v. Meigs, 67 Morgan v. Stevens, 369 r.IorrcU V. MorrcU, 282 Morris v. Morange, 23 V. Second Ave. R.R. Co., U Jjiinison v. Horrocks, 19, 24 T. Lawrence, 93, 114 JJorss V. Morss, 78 Jloses c. Banker, 20 jMullin r. Kelly, 33 Munn v. Birmore, Mundorf v. Mundorf, Munson v. Howell, Mui-phy V. Winchester, Page 205 107 348 39 Mutual Life Ins. Co. v. Anthony, 245 V. Boweu, 244 V. Salem, 244 Myers d. Cronk, 341 V. Myers, 269 Nason «. Ludington, 62 Nat. St. Bk., etc. v. Hibbard, 1C5, 196, 227 Naylor d. Naylor, 182 Nelson v. N. Y. & N. H. R. R. Co., 136 Newell V. Doty, 125 Ncwland ■!>. West, 51 Newlin v. Lyon, 125 Newman v. Marvin, 85 Nekton V. Russell, 311, 212 NichoUs V. Wentworth, 145 Niles, Matter of, 322, 328 Niles V. Price, 119 V. Battershall, 103 Niver v. Rossinan, 109, 110 Noble V. Cromwell, 250 Nugent V. Keenan, 167 N. Y. Elevated R. R. Co. v. Mc- Daniel,. 109 N. Y. Life Ins., etc., Co. v. Milnor, 230 V. Vanderbilt, 244, 245 N. Y., etc.. Telegraph Co. •». Jewett, 197 Oberlander ». Speiss, 141 O'Brien v. Catskill Mt. R. R. Co., 40, 51 O'Dea r. O'Dea, 282 O'Donnell v. Rosenberg, 3G8 O'Dwyer r. Mack, 26 Olmstead v. Loomis, 36 Ontario Bk. v. Strong, 224, 225 TABLE OF CASES CITED. XXUl Oregon S. S. Orr's Case, Co. V. Otis, Page 84, 151 307 Paciflc Mail S. S. Co. v. Leu- ling, 210 Packer ». French, 53 Paddock v. Kirkham, 344 Palmer v. Palmer, 107, 197 1). Phenixina. Co., 134 Pardee c. Tilton, 301 Park V. Park, 280 Parker v. Baxter, 109, 141, 145 V. French, 74 Parker v. Link, 135 Parkhurst v. Bcrdell, 49, 151 Parsons v. Suydam, 72 Patent Elastic Felt Co. «. Spen- cer, 148 Patterson v. Graves, 102, 105, 153 1). Stettauer, 24, 38 Paulison v. Field, 27 Pearl ■». Eobitschek, 78 Pearson v. Fiske, 74, 147 Peck V. Yorks, 105 People ex rel. Adams v. Baker, 185 ex rel. Brunett v. Dutcher, 304 ex rel. Day v. Bergen, 232, 237 ex rel. Del Mar v. St. Louis i&c. Ry. Co., 204, 205 ex rel. Jacobs v. Ball, 304 ex rel. Jones «. Davison, 171, 185 ex rel. Stevens ». Lott, 328 ex rel. Wolford «. Strevel, 78 1). Albany, etc. R. R. Co., 110, 214 •». Baker, 364 D. Com. of Highways, 864 v. Connor, 364 v. Continental Life Ins. Co., 169, 162 D. Empire Mutual Life Ins. Co., . 197 ■V. Ferris, ' 365 Page People «. Flake, 364 V. Goff, 870 V. Goodwin, 364 ». Leipzig, 808 v. McGinnis, 2 •B. Osborn, 864 «. Peck, 15 V. Shiland, 364 «. Van Alstyne, 864 Perkins «. Hill, 145 Perry «. Rollins, 27 Peterson v. Rawson, 144 Peyser «. Wendt, 85 Phelps ®. Vischer, 105, 144 Philbin v. Patrick, 160 Phipps o. Carman, 115 Phillips. Gallant, 143 Phillips v. Walker, 239 Pierce ®. Voorhees, 51 Place V. Chesebrough, 9, 10, 21 Piatt v. Piatt, 145 Pollock, Matter of, 827 Pollock u. Pollock, 124, 278 Pope «. Perault, 168 195 Porter ». Smith, 88, 143 Potter, Matter of, 859 Potter «. Carpenter, 88, 105, 145 Pratt «. Stiles, 119 Preston v. Morrow, 4 Price J). Brown, 84 . Tallman, 192 Pugsley v. Pugsley, 269 Putnam, Matter of, 350 Putnam v. Hubbell, 105, 145 Quackenbush v. Johnson, 114 Quinby v. Claflin, 84 Quincy «. Young, 90, 103 Quinn v. Lloyd, 4, 6, 45, 152 Radley v. Fisher, Randell «. Kingsland, Rathbone v. Clark, 345, 848 17 230 XXIV TABLE OF CASES CITED. Page Kathbone s. Lownsbury, 40 Rauth, Matter of, 350 Read «. Lozin, 12, 18 Redmond v. Goldsmith, 304 Reese v. Boese, as Rec'r, 134 ». Smyth, 182, 382 Reilly o. Byrne, 22 Renouil «. Harris, 43, 44, 121 Reynolds ®. McElhone, 305 •0. Robinson, 145 Rice 1). Isham, 145 Rich, Matter of, 322 Richards v. Alien, 104 Ricketts v. Wessels, 105 Ridgway ». Taylor, 17 Riley v. Brown, 204 ®. Sexton, 125 Rindskopf, Matter of, 357 Rochester v. Mayor, 8, 9, 25, 27 Robert «. Ditmars, 348 Roberts v. White, 210 «. Mutual Ben. Life Ins. Co., '. 2, 45 Robinson ». Robinson, 75, 251 Rockwell 1). Decker, 252 Roe 1). Boyle, 148 Rogers «. Runyan, 364, 365 Ronalds ». Mechanics', £c. Bank, 46, 47 Roosa I). Saugerties, &c. R. R. Co., 154 V. Smith, 148 Rose i>. Post, 211, 212 Ross, Matter of, 146 1). Beecher, 30 1). Combes, 22, 28, 46 V. Mayor, 22 V. Ross, 287 Rowell «. Giles, 21 Rothschild «. Werner, 164 Rusk V. Marston, 195 Russell V. Duflon, 124 , Matter of, 823 Rust V. Hauselt, 196 Ratter, Bx parte, 52 Ryan «. Atlantic Mutual Ins. Co., 27, 33 V. Wavle, 133 Sage 1). Mosher, 49^ Salisbury «. Scott, 33 Sands «. Birch, 882 as Rec'r ». Kimbark, 382 Scattergood v. Wood, 148 Schaller, Matter of, 850 Schermerhorn «. Devlin, 74 V. Prouty, 2-j8 V. Van Allen, 39 V. Wood, 34, 27, 47 Schloss V. WaUach, 307 Schroeter v. Schroeter, 287 Schulhoff V. Co-operative Dress Assn., 11 Schultz V. Whitney, 6<> Schwarz v. Weber, 128, 13* Schweizer v. Raymond, 152 Scofleld V. Hernandez, 82 Scott V. Meeker, 83 V. PUkington, 141 V. Williams, 73, 194r Scranton «. Baxter, 97 Scudder v. Snow, 29 Security Fire Ins. Co. v. Mar- tin, 71, 225. Seeley v. Jobson, 170- Seigel V. Held, 20 Seligmau v. Wallach,, 307 Serment v. Baetjer, 102, 103. Settle V. Van Evrea, 36 Shakespeare v. Markham, 341 Sharp V. Mayor, 22, 30, 39 Sharpe v. Freeman, 7o Shaw V. Ayer, 2& Sheahy v. Tomlinson, • 370 Shearman c. Justice, 109, 119 Sheldon o. Harris, 18 V. Wood, 23, 124 Shepherd v. Hill, 146 Sheridan «. Genet, 168 Sherwood i\ Dolen, 808 TABLE OF CASES CITED. XXV Sherwood «. Tremper, Shotzler v. Shetzler, Shibley v. Angle, Shuart v. Taylor, Page 40 265 145 39, 148 Shultzw. Whitney, 66, 162, 163, 1C4 Sickles V. Flanagan, 145 V. Fort, 63 V. Hanley, 301 Silmser v. Redfleld, 22 Simmonds v. Simmonds, 186 Simmons ». Johnson, 139 Sinclair v. Tallmadge, 141 Sisson «. Cummings, 88 Small V. Be Forrest, 65 Smith v. ^tna Ins. Co., 144, 148 V. Brown, 16 V. Dodd, . 47 11. Johnson, 308 ■». Pettee, 145 V. Randall, 347 V. Rathbun, 84 V. Rowley, 105 V. Smith, 254 Stiiffen V. Koechling, 89 V. Weed, 40 Snooks t'. Fries, 104 Snyder «, Stafford, 230 Somers n. Milliken, 196 Somerville v. Crook, 345 Spence v. Chambers, - 143 Spencer v. Utica R. R. Co. 152 Spooner v. Lefevre, 203 Stafford v. Ambs, 44, 204, 205 V. Hesketh, 112 State V. Jackson, 224 Stebbins v. Brown, 37, 97, 154 «. Cowles, 27, 47 Steinert, Matter of, 196, 197, 214 Stelle v. Palmer, 204, 205 Stephens v. Strong, 49, 50, 67 Stevens «. Mayor, 89, 145 Stevenson e. Buxton, 27 Stewart v. Elwele, 17 V. Moss, V. O'Donnell, 841 Stewart v. Turner, Stilwell i>. Mutual Life Ins. Stoddard v. Whiting, Story V. Brown, Streat v. Rothschild, Strittmachers. Salina Co. Strong J). De Forrest, V. Ilardenburgh, v. Place, Stuart V. Binsse, Stubbs V. Ripley, 193, Stuyvesant v. Browning, Sudlow V. Knox, Sullivan v. Sullivan, 42, Swarthout v. Curtis, Swezey, Matter of. Swift V. Wella, Suydam «. Holden, Co., rage ,72 145, 143 203 18 148 213 130 106 131 194, 205 220 187 165, 278, 284 227 358 17 869 Taaks v. Schmidt, 211 Talcott V. Smith, 143 Tallmadge v. Whitman, 124 Tator V. Adams, 244 Taylor v. Guest, 145 Terpening v. Smith, 304 Tbiess ■;;. Buckley, 214 Thiesselin v. Rossett, 113, 114 Thompson v. Finn, 209 V. Krider, 50 ■». Parker, 112 V. Wood, 148 Thorn, Estate of, 321 Thornton 'i). Autenrieth, 145 V. Thornton, 114 Thurman «. Fiske, 160 Tilman v. Kean, 104, lOS Tomlinson ». Mayor, etc., 143 Townsends. Glens Falls Ins. Co., 36,94,111,112,340 V. Hendricks, 22 V. Peyser, 148, 160 Tracy v. Stearns, 17 ■». Suydam, 842 Tremain v. Rider, 124 XXVI TABLE OP OABifiS UlTfii". Trimble©. Stillwell, Trimmer v. Trimmer, Trist V. De Cabezas, Trufaut v. Merrill, Tryon v. Baker, Turner v. Taylor, Page 74 76 116 107, 119 143 46 Tweed, Matter of, 133, 135, 186 Ubsdell ®. Root, 12, 47 Underbill v. Newberger, 841 Union Dime Savings Bank s. Osley, 243 Union Bank ■». Mott, 151 United States «. Anonymous, 187 Untermeyer D. Beinhauer, 14 Utica City Bank s. Buel, 308 Valentine, Matter of, 145, 258 Van Blarcom v. Broadway Bank, 144 Van Derlip v. Keyser, 83 Van Gelder v. Van Gelder, ' 145 Van Marter v. Hotchkiss, 141 Van Rensselaer v. Jewett, 14 Van Sickel i>. Graham, 348 Van Steenburgb v. Hofiman, 104 Varnum-!). Wbeeler, 167 Verplanck v. Kendall, 17, 24 Vilmar v. Schall, 23, 145 Matter of, 62, 350 Wagener v. Finch, 75 "Walbridge v. James, 238 Walcott v. Weaver, 220 "Walker v. Walker, 251, 283 Walsh V. Powers, 142 AVard v. Craig, 91, 125, 144 «). James, 239 1). Kilpatrick, 370 Waring v. Chamberlain, 20, 26 ID. Waring, 145 Warner v. Gillette, 148 V. Warren, 48, 142 D. Western Transportation Co., 22 Warren v. Warren, Waterman v. Waterman, Waters v. Shepherd, Watson V. Gardiner, Weeks V. Southwick, Weiter u. Schlieper, Weller v. Weller, Page 133 81, 190, 284, 286 114 164 210 12 340, 341 Wellington v. Ulster Ico Co., 245 Wells V. Ross, 141 Welsh V. Darragh, 17, 24, 46 Weseman t. Wingrove, 128 West «. Kiersted, 78 Westbrook «. Du Bois, • 129 Westcott V. Fargo, 141 Westerlo o.'DeWitt, 147 Westheimber v. Westheimber, 278 Wetter v. Schlieper, 50 Whale V. Whale, 284 Whalen v. Board of Supervis- ors, 61 Wheeler v. Billings, 125 c. Falconer, 22, 30 v. Maitland, 51 V. Young, 146 Whitaker v. Defosse, 18, 30, 46, 47 White V. Smith, 53, 75 11. Story, 341 Whiting I). Kimball, . ,131 Whitney b. Whitney, ' 291 Wickham v. Frazee, 20, 23, 384 Wiggins V. Gans, 203 Wilcox V. Harris, 303 Wilde a. Joel, 211, 213 Wilkins v. Buck, 67 Wilkinson, Matter of, 3b7 Williams v. Allen, 17 V. Montgomery, 153 V. Sage, 67 Wilson .n. Andrews, 301 V. Daggett, 307 T. Knapp, 105 Wolcott V. Weaver, 224 Wood II. Crowner, 30 D. Hope, 17, 22 TABLE OF CASES CITED. XXVU Page "Wood V. Swift, 10, 98 Woodford v. Easbach, 205 WoodhuU V. Rosenthal, 145 Woodin V. Bagley, 842 "Woodruff V. Valentine, 145 Woodworth «. Seymour, 168 Woolf V. Jacobs, 152 Woolsey v. Tompkins, 366 "Worden s. Worden, 294 Wright 1!. Sanders, V. Wright, Page 105 81 Tale «. Eckler, 4 V. Gwinits, 78 Yates V. Eussell, 1, 4, 05, 111, 142 Young V. Cuddy, 344, 346 Youngs, Matter of, 359 PART I. KEFERENCES TO HEAR AND DETERMINE THE ISSUES. CHAPTEE I. Eeferences on Consent. § 1. At Common Law. § 2. Consent, a Waiver of Constitutional Right to Jury Trial. § 3. The Statute. § 4. The Stipulation. Form of Stipulation to Refer. Form of Order Thereupon. § 5. Consent Implied from Acts § 6. Effect of Consent. § 7. Consent to a Particular Reference. § 8. Control over the Selection of the Referee. § 1. At common law. — Eeferences of the issues on consent were recognized and permitted at Common Law (Hecker v. Fowler, 2 Wall. [U. S.] 123 ; Yates v. Eussell, 17 Johns. 461). § 2. Consent, a waiver of constitutional right to trial by jury.— -A consent to a refei-ence, duly made by a person authorized, is deemed a waiver of the Constitutional right to a jury trial (Lee v. TiUottson, 24 Wend. 337). 2 REFERENCES OS CONSENT. § 3. The statute.— § 1011, Code Civ. Pro. Except, in a case specified in the next section, the ^vhole issues or any of the issues in an action, either of fact or of law, must be referi-ed, upon the consent of the parties, manifested by a written stipulation, signed by their attorneys, and filed with the clerk. Where the stipula- tion does not name the referee, he may be designated by the court, on motion of either party. Where the stipulation names the referee, the clerk must enter an order, of course, referriag the issue or issues for trial to that person only. If the referee named in a stipula- tion refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee, enless the stipulation expressly pro- vides otherwise. § 1012. But a reference shall not be made, of course, upon the consent of the parties, in an action to annul the marriage, or for a divorce or a separation ; or an action against a corporation, to obtain a dissolution thereof, the appointment of a receiver of its property, or the distribution of its property, unless it is brought by the attorney -general ; or an action Avheretn a defendant, to be affected by the result of the trial, is an infant. In a case specified in this section, where the parties consent to a reference, the court may, in its dis- cretion, grant or refuse a reference ; and, where a reference is granted, the court must designate the referee. § 4. The stipulation.— That the consent should be in writing was also required, under the practice form- erly prevaihng (Diddell v. Diddell, 3 Abb. Pr. 167). But an assent by plaintiff's attorney in open court (People V. McGinnis, 1 Park. Cr. 387), and a recital in an order of reference that a consent had been given in open Eeferences by consent are permitted in the U. S. circuit court for the southern district of New York. Beckers «. Fowler, 2 Wall. 123; Kobinson v. Mut. Ben. Life Ins. Co., 16 Blatchf. 194. REFERENCES ON CONSENT. 3 court (Waterman v. Waterman, 37 How. Pr. 36) were held equivalent to an actual written consent. It was also permitted that the referees themselves should enter the consent of the parties in their minutes {Leaycroft v. Fowler, Y How. Pr. 259). In Bonner v. McPhail, 31 Barb. 106, it is intimated that an oral con- sent to a reference is binding if the parties actually proceed with the reference, Eule 11 of the General Eules of Practice provides : " No private agreement or ■consent between the parties or their attorneys, in respect to the proceedings in a cause, shall be binding, unless the same shall have been reduced to the form of an order by consent, and entered, or unless the evidence thereof shall be in writing, subscribed by the party against whom the same shaU be alleged, or by his attorney or counsel." There should be a written stipulation in all cases if the statute is to be comphed with, though as will be seen hereafter, there have been cases where a consent has been implied from the acts of the parties. Form of Stipulation to Kefer the Issues. Title of the case. It is hereby stipulated and agreed by the parties to this .action that it be referred to A. B., Esq., counselor at law, to hear and determine the issues in this case, and that an order may be entered accordingly. Date. C. D., plaintifE's attorney. E. F., defendant's attorney. Form of Order of Reference on Foregoing. 'Title of the case. At a special term, etc. On reading and filing the annexed stipulation, and on motion of 0. D., plaintiflE's attorney, it is ordered that this .action and all the issues therein be referred to A. B., ■counselor at law, as sole referee to hear and determine the same. i KEFERENCES ON CONSENT. § 5. Consent implied from acts. — From defendant's attor- ney appearing in open court and consenting orally, and afterwards appearing before the referee and claim- ing an adjournment (Keator v. Ulster and Delaware Plank Eoad Company, T How. Pr. 41). From appear- ance in, and proceeding with, a reference (Bucklin v. Chapin, 53 Barb. 488 ; s. c, 35 How. Pr. 155 ; Quinn v. Lloyd, 7 Eobt. 157). In analogy to this it has been held that the want of power of attorney to submit a cause to arbitration is cured by the clients personal ap- pearance and participation in the arbitration (Diedrick V. Eichley, 2 Hill, 271.) And see People ea; rel. Yale v. Eckler, 19 Hun, 609, where, under the statute allowing an appeal to the superintendent of public instruction, it was held that an appearance on such a submission was a waiver of the right to a jury trial of the issues involved. § 6. Effect of consent. — A consent to refer estops the party from asserting that the cause was not a referable one (Yates v. Eussell, 17 Johns. 461 ; Bloore v. Potter, 9 Wend. 480). § 7. Consent to a particular reference. — Before the enact- tuent of the present § 1011 Code Civ. Pro. it was held in Preston v. Morrow (66 N. Y. 452) that where a party consents to a reference to a particular referee in an action not referable, except by consent, the court cannot, if the referee refuses to act, appoint a different referee against the parties objection. But under the present § 1011 as construed by the courts (May v. Moore, 24 Hun, 351), the view prevails that this section imposes an imperative duty upon the court to appoint Where, on consent, an action is referred to a particular person, and the parties proceed with the reference before him, such order will not be declared void, on the ground that the judge of the court which was in session when the order was entered was disqualified from acting by reason of relationship to one of the parties. Bell v. Vernoy, 18 Hun, 125 EEFERENCES ON CONSENT. 5 another referee in case of refusal, and that it is only necessary for either party to make the request. And this principle was acted upon in setting aside a judgment and vacating an order of reference in Hasten V. Budington (18 Hun, 105), which was a statutory reference of a claim disputed by an administrator. Appearance and participation in a reference before a referee other than the one named in a stipulation of the parties waives whatever preference there may have been. In Quinn v. Lloyd (7 Eobt. 157), the parties stipulated that the action be referred to a referee named. Upon the stipulation, plaintiff's attorney moved exparte for an order, but the court referred the issues to another person. Defendant's attorney attended before this referee, and proceeded with the reference for several ■ -days without objection when he moved to set the order •of reference aside. Held, that the acquiescence of defendant's attorney, as exhibited by attending before the referee, must be held to constitute a waiver of the irregularity. § 8. Control over the selection of the referee. — § 1011, Code Civ. Pro. provides that " when the stipulation names the referee, the clerk must enter an order of course, referring the issue or issues for trial to that person only." But it must also be borne in mind that courts have a duty to perform with respect to infants and absentees ; and should an improper person be sug- gested as referee, no doubt the court would have power to refuse to make the appointment. In Litchfield v. Burwell(5 How. Pr. 341, 9 N. Y. Leg. Obs. 182), decided before the Code of Civil Procedure, an application for an order of reference on a consent, was denied, one of the grounds beii;ig that it appeared that the person named in the stipulation was not a suitable person to act as referee. [For qualifications, selection and appointment of referee, see more f idly under compulsory references.] As the qualifications of referees, powers, rights ■of witnesses, and methods of trial are the same on REFERENCES ON CONSENT. compulsory references, as in those on consent, these points should be examined in the various chapters fol- lowing. They wUl be found arranged, as nearly as- possible, according to the stage of the trial, at which, they occur or are likely to occur. COMPULSORY EBFEEENOES. CHAPTER II. Compulsory Eeperences, § 1. The statute. § 2. No Absolute Right. § 3. What the Court Should Take into Consideration. § 4. Case to be at Issue as to All Parties. § 5. Good Faith. § 6. Failure to Comply with section 531 Code Civ. Pro. § 7. Part of the Issues. § 8. Stipulation to avoid a Reference. Form of Stipulation to avoid a Reference. § 9. Compelling a Party to Stipulate to Refer. § 10. Effect of Appearance and Participation in the Tiial. § 11. Account, What is an. § 12. Long Account. § 13. Complaint Determining whether Action is R;furable. § 14. Account to be Necessarily Involved. § 15. Account to be Directly Involved. § 16. Account Stated. § 17. Claiming a Long Account — Fstoppel. § 18. Referable and Non-referable Issues joined together in one Action. § 19. Torts. § 20. Fraud. § 21. Difficult Questions of Law. § 22. Peculiar Actions. (a) To Recover Penal Obligations under a Statute. (b) Attorneys' Bills. (c) Insurance Policies. (^d) Miscellaneous. § 1. The statute.— § 1013, Code Civ. Pro.— The court may, of its own motion, or upon the application of either party, without the consent of the other, direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account, on 8 COMPULSORY REFERENCES. either side, and will not require the decision of difficult questions of law. In an action, triable by the court, without a jury, a reference may be made, as prescribed in this section, to decide the whole issue, or any of the issues, or to report the referee's finding, upon one or more specific questions of fact, involved in the issue. § 1014. Where a reference is made, as prescribed in the last section, to report upon a specific question of fact, involved in the issue, and the determination of one or more other issues is necessary in order to enable the court to render judgment, they must be tried, either before or after the fihng of the report, as the court directs, and either by a jury, or by the court, without a jury, as the case requires. Where they are tried by a jury, appHcation for judgment must be made upon the verdict and the report. § 2. No absolute right.— The foundation for a compul- sory reference is the fact that the trial will involve the examination of a long account, and in no other case would the court be justified in ordering a reference of the issues for hearing and determination (Barnes v. West, 16 Hun, 68). But there is no right to a compul- sory reference of the issues even if a long account is involved. The court wiU take into consideration aU the circumstances of the case (Martin v. Windsor Ho- tel Co., 70 N. Y. 101 ; Mayor, etc. v. Qenet, 67 Barb. 275 ; Eochester v. Mayor, etc., 3 How. Pr. [N. S.J 527 ; S. c, 9 Civ. Pro. 226 ; Godfrey v. Williamsburgh City Fire Insurance Co., 12 Abb. Pr. [N. S.J 250). In Godfrey v. Williamsburgh Oity Fire Ins. Co. {supra), MoNELL, J., says: "The sole question is not always whether or not the action is referable. There ■Practice in the United States Circuit Court. On a motion for a reference of the issues Tvhich defendant opposed. Held, that while references by consent were permitted, j'et, though an action be compulsorily referable in the State court, such action was not compulsorily referable in the United States court. Motion denied. Howe Machine Co. v. Edwards, 15 Blatchf. 402. COMPULSORY REFERENCES. 9 are other considerations which should have their weight in determining the matter ; and if it can be seen that it may work a wrong, or a hardship, or be oppressive upon one or the other of the parties, the court should not inflict such wrong or hardship, merely because its convenience or time may be disturbed." § 8. What the court should take into consideration. — It is no objection that the case has once been tried by a , jury (Brown v. Bradshaw, 1 Duer, 635); but if the issues have already been submitted to a competent arbitrator, that fact should make the court more ready to decline to order a compulsory reference (Felt v. Tiffany, 11 Him, 62). The fact that the circuit calen- dar is crowded with business will incline the court to look with favor upon the appUcation (M'Mahon v. .Allen, 10 How. Pr. 384), and, therefore, if a trial can soon be had in the regular way, it is a circumstance to influence the decision of the court in denying the Tnotion (Kochester v. Mayoi-, etc., 3 How. Pr. [N. S.] 527 ; s. c, 9 Civ. Pro. 226). An inability to pay the referee's fees is not regarded as a ground of objection (Place V. Chesebrough, 4 Hun, 577 ; s. c, 63 N. Y. 315). The fact that an order of arrest has been granted in the action; does not make the case less suitable for a reference (Atochia v. Garcia, 15 Abb. Pr. 303). Even if an action be technically referable, a reference of- the issues should not be ordered where an important question of fact is to be determined before the alleged account can become of importance (Keep V. Keep, 58 How. Pr. 139). § 4. Case to be at issue as to all parties. — A case is not Tipe for a reference until at issue as to all the parties , necessary to a decision (Goodyear v. Brooks, 4 Eobt. {Superior) 682; s. c, 2 Abb. Pr. [N. S.] 296). Nor should a reference be ordered pending an undetermined demurrer going to the whole cause of action (Jansen 10 COMPULSORY REFERENCES. V. Tappeu, 3 Cow. 339). But if not properly at issue, that objection must be taken on the motion to refer. It cannot be urged afterwards as an objection to pro- ceeding with the trial before the referee (Hawkins v. Avery, 32 Barb. 551). As soon as the cause is at issue, the party may move for the reference. He is not bound to see whether or not his opponent will amend. (Enosf. Thomas, 4 How. Pr. 290). Necessary parties,, newly bi^ought in after a reference has been started,, have a right to object to the reference. In Wood v. Swift, 81 N. Y. 31, after an action had been referred, the evidence taken, and the case finally submitted tO' the referee for his decision on the merits, the court granted an order bringing in other parties as defend- ants, and directing that the cause remain and con- tinue for trial before the referee the same as if the parties added had been parties from the beginning of the action, they to - have the privilege, however, of cross-examining the witnesses produced and examined on the trial. It did not appear that the cas3 was one which could have been referred without consent. Held, that conceding the court had the power to bring: in the new parties, the residue of the order was erroneous, as the court could not couipel them to accept the referee or the evidence taken, that they had at least tJie right to be heard as to the appointment of the referee. § 5. Good faith. — On a motion for a reference, the good faith in bringing the action, cannot be inquired into (Place v. Chesebrough, 4 Hun, 577 ; 63 N. Y. 315). § 6. Failure to comply with § 531 Code Civ. Pro. — If a copy of the account relief upon is served, though defective, section 531, Code Civ. Pro. cannot be relied upon to oppose a motion for a reference, on the ground that the party cannot introduce evidence of the long- account, though there actually be one in the case. If the account furnished is defective, to get the benefit COMPULSORY REFERENCES. 11 of section 531, the party must apply to the court for a further account, or there must have been a total failure to dehver any account at aU (Schulhoff v. Co-opera- tive Dress Association, 3 Civ. Pro. 412). § Y. Part of the issues. — Whether aU of the issues shall be referred is discretionary (Batchelor v. Albany City Insurance Co., G Abb. Pr. [N. S.J 240); but a piecemeal trial of the issues by which the verdict of a jury is taken in plaintiff's favor, subject to the opinion of the court, the case to be heard in the tirst instance at general term, and a reference to be had if that court affirms, plaintiff's right to recover, is not tolerated (Buchanan v. Chesebrough, 5 Duer, 238). § 8. Stipulation to avoid areference. — "Where the defend- ant seeks to avoid the reference of the issues in an action, concededly referable, by a stipulation vrhich, it is alleged, will take the question of a long account out of the issues to be tried, it is proper for the court to make an order referring the cause unless the defendant sign a stipulation, the form of which is prescribed by the order. The form of a stipulation so prescribed wiU not be reviewed, except in cases where there is a man- ifest abuse of discretion (McAndrew v. Place, 5 Hun,. 285). Form of Stipulation to Avoid a Eeference. Title of the case. The plaintifiE in tliis action having served motion papers- for an order referring the case, the defendant hereby stipu- lates that upon a trial he will not dispute or question the items of goods sold, to recover the value of which this action is brought, either as to number, character, value, or price,, but he denies that the said goods were sold to this- defendant. Date. A. B., defendant's attorney. 12 COMPULSORY REFERENCES. § 9. Compelling a party to stipulate to refer. — T^^lere an action is from its nature non-referable, except on con- sent, it will be error to force from a party a stipulation to refer the issues as a condition of granting him, cer- tain rehef as, for instance, leave to answer (Cordier v. Cordier, 26 How. Pr. 187), or that the court will award certain relief against him as that it will order his answer to be stricken out, unless he consents to a refer- ■ence (Barnes v. West, 16 Hun, 6S). § 10. Effect of appearance and participation in the trial. — Appearing on the reference and asking an adjourn- ment, is a waiver of an insufficient notice of trial {Waiter v. Schheper, 7 Abb. Pr. 92). Appearing and proceeding with the reference without objection has been held a waiver of irregularity in ordering the refer- ence (Dwight V. St. John, 25 N. Y. 203). That the <;ase was not referable (McCall v. Moschowitz, 10 Civ. Pro. 107 ; Ubsdell v. Eoot, 3 Abb. Pr. 142 ; Forrest v. Forrest, 25 N. Y. 501 ; affg. 6 Duer, 102 ; s. C, 8Bosw. 64:0) or that the court was without jurisdiction to make -an order of reference (Baird v. Mayor, 74 N. Y. oS2). An objection that the cause is not a referable one is not effectually raised by simply objecting to proceed on the reference. The proper way is to appeal from the order directing the reference (Elliott v. Lewis, 16 Hun, 581). But in Eead v. Lozin, 31 Hun, 286, where an action was referred on defendant's default at the hearing of a motion for a reference, it was held, that, the defendant did not, by subsequently appearing hefore the referee, and examining and producing wit- nesses, waive his I'ight to appeal fi'om an order deny- ing his motion to open the default, because when he first appeared, before the referee, he objected to the reference as unauthorized, and also renewed his objec- tion at the close of the hearing. An order of reference will be treated on appeal as having been compulsorily made; where it recites that the motion was opposed, and thei'e is nothing in the COMPULSORY REFERENCES. • 13 papers showing that the motion was assented to (Whit- aker v. Desfosse, 7 Bosw. 678). § 11. Account, what is an. — The "account" contem- plated by the statute is the account, as ordinarily un- derstood between persons having reciprocal or mutual dealings. Perhaps the best definition is that given by Justice Barculo, in McMaster v. Booth, 3 Code E. Ill; 4 How. Pr. 427. He says: "As I understand the meaning of that term, I should define an account to be a computation or statement of debts and credits arising out of personal property bought or sold, ser- vices rendered, material furnished, and the use of property hired and returned. If an account does not fall within this definition, it is not an account within the ordinary legal acceptation of the term, and cannot be referred without the consent of the parties." Illns'trations of the rule that mere items of damage do not cou- stitnte an account. In an action against a sheriff for damages, for a false return to an execution, and for damages in not satisfying the execu- tion out of property attached. Held, denying a motion for a reference, that the trial must involve the examination of an account in the ordinary acceptance of the term. Paige, J., says : " The trial cannot require the examination of a long account in the ordinary acceptance of the term. 'No computation of debts and credits between the parties will be necessary. The examination of numerous items of dam- age does not constitute an account between the parties with- in the meaning of that term. The determination of the measure of damages in this case will undoubtedly require an examination in respect to the value of the property attached by the defendant; but this will not be an account in the common acceptation of that term." Dewey t. Field, 13 How. Pr. 437. In an action for damages for failure to instruct plaintiff in the manufacture of soap, plaintiff moved for a reference, the long account, the examination of which it was supposed li COMPUliSORY REFERENCES. the trial would involve, consisted of items of damage result- ing from establishing a factory and purchasing materials to make the soap, ^eld, denving the motion, that, under § 271 subd. 1 of the former code, the account, must be an account in the ordinary sense of the term, and not merely a list of items of damage. McCnllongh t. Brodie, 13 How. Pr. 346. In an action for damages for the failure to deliver the contents of sinks and privies, a compulsory reference of the issues was ordered. On appeal from the order of reference, setting same aside, Held, that it is the commercial or finan- cial account to which the code relates — the account in trade or in finance, and not a statement of items or elements of damages for a contract broken, which, if fulfilled and prose- cuted, might require an examination of items in detail. Bell V. Mayor, etc., of New York, 11 Huu, 511. An action was brought to recover nine years' I'ent. The annual rent reserved by the lease was payable in fowl, bushels of wheat, etc. A reference was granted on the ground that the action would involve the examination of a long account. Held, granting a motion to vacate the order of i-eference, that where there is no account between the parties in the ordinary acceptation of that term, the cause cannot be referred, although there may be many items of damage. Tau Rensselaer t. Jewett, 6 Hill, 373. In an action to recover damages for the breach of a con- tract to furnish certain buildings at a certain time, a com- pulsory reference was ordered. Held, reversing the order of reference, that such an action does not involve an account. McDonnell t. Stevens, 9 Hun, 28. The principle that mere items of damage do not constitute an account was applied to reverse an order of reference, in an action on a building contract in Untermeyer t. Beinlianer, 105 N. T. 521. But the element of mutuality in the accounts has not always been rigidly insisted upon. Thus, in Hossacks V. Heyerdahl, 38 Super. Ct. (J. & S.) 391, in an action to recover for services as accountant and examiner of COMPULSORY REFERENCES. 15 ■defendant's books, the plaintiff moved for a reference of the issues on an affidavit and a bill of particulars in which numerous items of service were enumerated, but they were exclusively services rendered for defen- dants, and had nothing of a mutual or reciprocal char- acter. The motion was granted. On appeal, held proper. Sedgwick, J., says: "However correct the proposition of the learned counsel for the appellant may be, that an account as known by the law is not an ex parte enumeration of items, but a statement of deahngs having a recognized mutual or reciprocal charact er, yet the practice is not to apply this strict definition to the words of the code, but to consider that the code intended that whatever presents the same kind of difficulties as a strict account for the action of a jury, should be sent to a referee." That work, labor and services may be matters of ac- count, see People v. Peck, 5T How. Pr. 315. § 12. Lo9g account. — That the account must be ^' long "is conceded, but just how long it should be the courts have not decided. In fact, from the nature of th6 case, it is impossible exactly to determine how long the account should be, and if it were, it would be impolitic and work injustice to lay down rigid rules on the subject. Illnstrations. In an action to recover compensation for indorsing nego- tiable paper for defendant, the number of notes exceeded twenty. Held, on a motion for a compulsory i-eference of the issues, that as it would be necessary to ascertain both the number and amount of the notes, it was a case of a long account. Motion granted. Masterton t. Howell, 10 Abl». Pr. 118. In an action based on certain contracts for the sale and delivery of several thousand logs and large deliveries of logs and lumber, a motion was made at special term for a compulsory reference of the issues. Held, granting the motion that reference was proper. Bissell v. Whipple, 8 Week. Di&. 262. 16 COMPULSORY REFERENCES. In an action to recover for work, labor and services on a plumber's bill, all the items were of one date and substan- tially were reducible to two items. The court ordered a compulsory reference. On appeal from the order of refer- ence, Held, reversing same, not a case where a compulsory reference could be ordered. Harris t. Mead, 16 Abb. Pr. 25 7. In an action by an attorney to recover for professional services, his claim consisted of ten items : six of which were for consultations, one for counsel fee and consultation, one for drawing the complaint, one for demanding property of a sheriff, and one for attending the justification of bail. Held, on appeal, reversing compulsory order of reference (Westbeook, J., dissenting) that the action did not involve the examination of a long account, and therefore could not be referred except by consent. Merritt T.Tigclins, 28 Hnn, 420. In an action for legal services, on defendant's demand the plaintiff furnished a bill of particulars containing five distinct items of charges on the debit, and one item on the credit, side. A compulsory reference of all the issues was ordered. Held, on appeal, reversing the order of reference, that six items do not constitute a " long account." Dickinson T. Mitchell, 19 Abb. Pr. 286. In an action of assumpsit on a promissory note. Held, that a bill of particulars served by defendant, containing seven items for money paid, goods sold, and money lent, all of the same date except three, was not a sufficient account to entitle the plaintiff to a reference of the issues. Motion for a reference denied. Smith t. Brown, 3 How. Pr. 8. A few items requiring simply proof of their value do not make a long account (Adams v. City of Utica, 6 Civ. Pro. 294; Dittenhoeffer v. Lewis, 5 Daly, 72). Where there were only /owr items of an account, the court refused a reference (Parker v. SneU, 10 Wend. 578). But while considerable latitude is thus allowed as to the number and extent of the accounts, certain gen- eral principles are pretty weU established respecting the accounts themselves. COMPULSORY REFERENCES. 17 (a) A long account cannot be predicated of the mere details of a single employment— splitting up what really amounts to only one piece of business (Daily v. Gescheidt, 9 Eep. 254; Benn v. First Nat. Bank, 19 Week. Dig. 206; Felt v. Tiffany, 11 Hun, 62; Ridgway V. Taylor, 5 Week. Dig. 250; Tracy v. Stearns, 6 How. Pr. 265; Hull v. Allen, i N. Y. Civ. Pro. 300; Eandall V. Kingsland, 53 How. Pr. 512; Swift v. Wells, 2 How. Pr. Y9; Stewart v. Elwele, 3 Code R. 139; Hale v. Swinburne, IT Abb. N. C. 3S1; Miller v. Hooker, 2 How. Pr. 171; Andrews v. Wallace, 1 Month. L. Bui. 19). (6) But though the number of items in gross, which is actually disputed may not be large, yet if these items are in their nature properly made up of numerous smaller items, a referable case is presented (Williams V. Allen, 4 Supm. Ct. [T. & C] 673 ; s. c, 2 Hun, 377). (c) The account which furnishes the ground for the reference must be distinguished from the bill of par- ticulars setting it forth. The bill of particulars does not constitute the account (Dickinson v. Mitchell, 19 Abb. Pr. 286). (d) An order of reference of the issues, one of which involves the examination of a long account, will not be reversed on the suggestion that such issue is not a material one (Lawless v. O'Mahoney, 9 Abb. Pr. [IST. S.] M). § 13. Complaint determining whether action is referable. — The character of the action, from plaintiff's point of view, is detei'mined by the complaint (Harden v. Cor- bett, 6 Hun, 522; Andrews v. Wallace, 1 Month. L. Bui. 19 ; Verplanck v. KendaU, 45 Super. Ct. [J. & S.J 525 ; Williams v. Allen, 2 Hun, 377; 4S How. Pr. 357; Wood V. Hope, 2 Abb. N. C. 186; Welsh v. Darragh, 52 N. Y. 590). -But this does not preclude the court from order- ing a reference where the trial of the defenses inter- posed, will require the examination of a long account (Blackstone National Bank v. Bogart, 41 Super. Ct. 18 COMPULSORY REFERENCES. [J. & S.J 292; Cowden v. Teale, 6 Hun, 532; Maryott v. Thayer, 39 Super. Ct. [J. & S.J 417). An action referable in uature is not rendered non-referable by reason of a counter claim interposed by defendant (Brooklyn, &c. E. K. Co. V. Eeid, 21 Hun, 273). § 14. Account to be necessarily involved. — To make the issues compulsorily referable the account must be neces- sarily involved in the trial (Sheldon v. Harris, 7 N. Y. Leg. Obs. 57 ; Keeler v. Poughkeepsie and Salt Point Plauk Eoad Company, 10 How. Pr. 11; Farrell Foun- dry V. Anvil Horse &c. Co., 11 Week. Dig. 350); but in Mayor, &c. v. Genet, 67 Barb. 275, it is intimated that the probability of a long account being involved is sufficient basis for a compulsory reference, and, in Dustinf. Wallace, 13 Week. Dig. 518, Held, that where it appears that the examination of a long account will probably form a very material circumstance, although it may not be the important point upon which the controversy must be decided, a compulsory reference was proper. § 15. Account to be directly involved. — A reference of the issues cannot be compulsorily ordered, where the account involved is only incidental or collateral. It must be directly involved in the action (Camp v. Inger- soll, 86 N. Y. 433 ; 13 Week. Dig. 149 ; 1 Civ. Pro. 340 ; rev'g 47 Super. [J. & S.J 534; Freeman v. Atlantic Mutual Ins. Co., 13 Abb. Pr. 124; Kain v. Delano, 11 Abb. Pr. [N. S. j 29 ; Streat v. Eothschild, 12 Abb. N. C. 383; Eeadw. Lozin, 31 Hun, 286; Lord v. Connor, 48 How. Pr. 95; Hartwell v. Alberst, 3 Month. L. Bui. 77; Hull v. Allen, 4 Civ. Pro. 300 ; Miner v. Gardiner, 6 N. Y. Supreme [T. & C.J 343 ; mem. of s. C. in 4 Hun, 132 ; Mayor v. Tenth Nat. Bank, 11 Eep. 475; McDonnell v. Stevens, 9 Hun, 28). Some illnstrntions of this rule not above cited. The plaintiff having recovered a judgment against a lim- ited corporation for goods sold and delivered, and issued an COMPULSORY KEFEEENCES. 19 execution thereon, which had been returned unsatisfied, brought an action against a stockholder to enforce the statu- tory liability. A reference of the issues was ordered. On appeal, Held, reversing the order, that, until the defend- ant's liability as a stockholder should be established, proof as to the sale of the goods would be unnecessary. Claflin v. Drake, 38 Hun, 144. In an action by a creditor to set aside a mortgage made by defendant, on the ground that it was made with intent to hinder, delay and defraud creditors, the plainti£E moved for a reference, arguing that it would involve the examination of a long account to determine the question of solvency or in- solvency at the time of making the conveyance. Held,, denying the motion, that the "account" to be examined must be directly involved, and not arise merely as a mode of proving a fact In controversy. Bushnell v. Eastman, 2 Abb. Pr. [N. S.] 411. In an action to set aside execution sales of the interest of a partner in a certain firm, and for an accounting, where the substantial issue was the fraud, and the accounting was wholly dependent upon that issue, and would be unnecessary unless the fraud was established, Held, that it was error to refer the issues. Order of reference of the issues reversed. JJIorrison t. Horrocks, 40 Hun, 428. In an action to recover a balance dne on certain bills of ex- change, defendants pleaded a payment in shipments of corn. On a motion to refer it appeared that the gross and net pro- ceeds of the sales were admitted by both parties, and that the only question in dispute, was, whether the proceeds of the sales had been received by the agents of the plaintiffs or defendants. Held, reversing an order of reference of the issues, that to authorize a compulsory reference, the aeconnt must not only be a long one, but it must be dii'ectly involved. It must be the immediate object of the suit, or the ground of the defense, and not arise collaterally or incidentally. MaGown t. Sinclair, 5 Daly, 63. In an action to recover for meat sold, plaintiff moved for a reference of the issues on an affidavit showing that his •claim included more than twenty items of account. Defend- 20 COMPXJLSORY REFERENCES. ant's defeuse consisted wliolly of a denial that tlie meat was sold to him, and offered to stipulate that at the trial he ■would not dispute or question the items as to number, char- acter, value or price, and asked a trial by jury. The court ordered a compulsory reference. Upon appeal the order of reference was unanimously reversed. Seigel v. Heid, 36 How. Pr. 606.. In an action by the receiver of a life insurance company to recover dividends paid by the company to defendant while insolvent, a motion was made for a reference on the ground that the trial required the examination of a long- account, on an affidavit showing that an examination into the various assets and accounts of the company would be necessary for the purpose of establishing the alleged insol- vency. On appeal, Held, that the rfiotion for a reference was propei'ly denied. The examination of the long account must be an examination of the subject-matter of the action,, and not of things collaterally or incidentally necessary in order to establish the alleged right to recover. Wickham t. Frazee, 13 Hnn, 431. In an action to recover for services and disbursements in two suits by an attorney, the employment was not denied, but the terms under which it took place, the value of the services, and the skillful conduct of the attorney, were put in issue. Held, reversing order of reference, that an investi- gation of these issues would not necessarily require the exam- ination of a long account so as to entitle to a compulsory reference. Waring t. Chamberlain, li Week. Dig. 564. In an action for an accounting between partnership firms,, a motion was made for a reference, Held, denying the mo- tion, that the court is only authorized to direct a reference of the issues when the issues in the action directly involve the examination of a long account. It is not enough that such an examination may, in the progress of the trial, be- come important collaterally for the purpose of establishing- some other issue. Cameron t. Freeman, 10 Abb. Pr. 333 ; 18- How. Pr. 310. - The complaint averred that defendant, being the owner of certain real estate, agreed with plaintiff, that if the plaintiff COMPULSORY REFERENCES. 21 Tvould pay all the household expenses during the life of de- fendant and his wife, and the life of the survivor, the premises should belong to the plaintiff. It further alleged that the plaintiff had expended over $5,000 in executing the contract, when he was prevented from its further execution by defendant giving a deed thereof to his second wife. A •compulsory reference of the issues was ordered on plaintiff's jnotion. On appeal from the same, Held, error, reversing the order, as the account was only incidentally involved. Keep T. Keep, 58 How. Pr. 139. § 16. Account stated. — Where the cause of action is upon an account stated, a compulsory reference can- aiot properly be directed (Baker v. Walsh, 9 Week. Dig. 18 ; Marseu v. Phiia. Arch Iron Co., 1 Month. L. Bui. 20 ; Eowell v. Giles, 53 How. Pr. 244). In Day v. Jameson, 49 Superior (J. & S.) 373, it is intimated by Sedgwick, J. (without deciding the point), that there should be no reference if the defense be upon an ac- count stated. § 17. Claiming a long account — estoppel. — Where a •defendant sets up in his answer a defense which prima facie wiU require the examination of a long account, he is estopped, on a inotion by plaintiff for a reference, from denying that he has such an account, or that it must be examined upon the trial (Holmes v. Bennett, 28 How. Pr. 289). § 18. Referable and non-referable issues joined together in •one action. — If there are referable issues in an action, a •compulsory reference may be directed, notwithstanding that one of the issues is not referable, as being founded on fraud (Hall v. U. S. Eeflector Co., 14 Week. Dig. 48; •88 N. y . 655) ; or does not involve a long account (Place V. Ohesebrough, 4 Hun, 577 ; 63 N. Y. 315) ; and it has been held that if the trial of any one issue wiU involve ihe examination of a long account, it is sufficient to authorize a compulsory reference, although the deter- mination of some other issue may render it unneces- 22 COMPULSORY KEFERENCES. sary to try the first naraed issue (Batchelor v. Albany City Ins. Co., 6 Abb. Pr. [N. S.] 240). Where a question properly triable by a jury is, however, so connected with accounts as to be unintelligible to a jury, there should be a reference (Mills v. Thursby, 11 How. Pr. 113). But where distinct causes of action are pre- sented, and the issues under one are properly referable, while those under the other are not, it will be error to direct a reference of all the issues (Eoss v. Combes, 37 Superior [J. & S.J 289). A reference of all the issues cannot be ordered where the long account rehed on is only one of the issues, and there are charges of fraud and equities to be adjusted between the parties. In such a case the reference should be confined to the issues involved in the account (Wheeler v. Falconer, Y Eobt. [Superior] 45). § 19. Torts. — In actions arising out of torts, the prac- tice has almost uniformly been to refuse a compulsory order of ref ererice. Action to recover damages for col- lision (Silmser v. Eedfield, 19 Wend. 21). Trover to recover promissory notes (Dederick v. Richley, 19^ Wend. 109). Failure to return an execution (Beardsley v. Dygert, 3 Den. 380). Damages from a fire suffered through carelessness and neglect (McMas- ter V. Booth, 4 How. Pr. 427). False return to an exe- cution and failure to attach property thereunder (Dew- ey V. Field, 13 How. Pr. 437). Value of property lost by carrier's neglect (Warner v. Western Transporta- tion Company, 3 Eobt. [Superior] 705). Destruction of property by rioters (Eoss v. Mayor, &c., 32 How. Pr. 164 ; s. c. 2 Abb. Pr. [N. S.J 266). False representations on the sale of a lease (Sharp v. Mayor, 9 Abb. Pr. 426 ; s. 0. 18 Howard, Pr. 213 ; 31 Barb. 578). False repre- sentations (Townsend v. Hendricks, 40 How. Pr. 143, rev'g 30 Id. 475). Conversion (Wood v. Hope, 2 Abb. N. C. 186 ; Clai'k v. Candee, 29 Hun, 139). Conver- sion and conspiracy (EeUly v. Byrne, 1 Civ. Pro. 201). Action to recover dividends wrongfully paid by in sol- COMPULSORY EEFEKENCES. 23 vent life insurance company (Wickham v. Frazee, 13 Hun, 431). Action against attorney for negligence (Hoffman v. Sparling, 12 Hun, 83). Damages for negli- gent killing of plaintiffs intestate (Durkin as Admin. y. Sharp, &c., 22 Hun, 132). And the fact that one of the parties to the action is a receiver will not inchne the court to order a compulsory reference on a tort (Durkin as Admin, v. Sharp, 22 Hun, 132). But contrary to the general principle running through all the above cases, the court in Sheldon v. Wood (3 Sandf. 739), laid down the rule that it has power to or- der a reference in actions arising out of torts. Illastratious of distinctions drawn between tort and contract. Plaintifi's complaint alleged, in substance, that plaintifE's firm deposited with defendants, as their bankers and agents, various sums of money, also United States bonds and bank stock, as special deposits, under an agreement that tliey should, at all times, be subject to the order and control of said firm, and that no interest should be paid tlierefor ; that defendants delivered specified portions of said deposits, but demand being made refused to deliver over the balance of said deposits, and wrongfully and unlawfully detained the same, and for the balance plaintiff demanded judgment. Held, tliat the averments were to the effect that the deposits were with defendants, as bankers, subject to the depositor's drafts, or order, under an agreement which did not contem- plate the return of the specific money or thing deposited, but that defendants could use it in their business without interest; that, therefore, the facts alleged constituted an ac- tion for bi'eacli of contract, not one in tort, so that a compul- sory reference of the issues could be ordered. Yilmar v. Schall, 61 N. ¥. 564; sifPg 35 Super. Ct. (J. & S.) 67. PlaintiflE sued to recover moneys placed in the defendant's hands as attorney, alleging that defendant " received said moneys as her attorney and agent, and agreed to hold the same for her, and to account for and pay over the same ■when demanded." The complaint further alleged that de- 24 COMPULSORY REFERENCES. fendant liad misapplied and appropriated the moneys to his own use. Held, that the action was on contract, and not in tort, and that a reference might properly be ordered therein. Harden v. Corbett, 6 Huii, 522. In an action by the receiver of a corporation for moneys fraudulently obtained from such corporation, the complaint alleged that the defendants were enabled to and did keep false accounts on the books of the company, and asked to recover the actual balance due from defendants to the corpo- lation. Plaintiff obtained an order of reference on the ground that the trial would involve the examination of a long account. On appeal Held, sustaining the order, that the action was compulsorily referable, there being nothing but a mere account of moneys to be investigated. Bensel T. Gait, 5 N. T. Supreme Ct. (T. & C.) 186; 2 Hun, 678. § 20. Fraud. — To what extent the issues may be referred where there are allegations of fiaud is some- what obscure. Actions to recover damages for fraud and deceit cannot be referred compulsorily (Verplanck V. Kendall, 45 Superior [J. & S.] 525). Jf the plain- tiff's substantial issue is fraud, and an examination of the account is unnecessary unless the fraud is first estabhshed, a reference should not be ordered (Morrison v. Horrocks, 40 Hun, 428). But if a question of fraud only enters as a part of plaintiff's cause of action, a referee has power to pass upon it (Hall v. U. S. Eeflector Co., 14 Week. Dig. 48; aff'd 88 N. T. 655). Where the allegations of fraud are merely incidental (Schermerhorn v. Wood, 4 Daly, 15 S ; Harrington v. Bruce, 84 N. Y. 103), or only inserted to enable the plaintiff to obtain a provisional remedy (Atocha V. Garcia, 15 Abb. Pr. 303). The cause does not thei'eby lose its referable character. An allegation of fraud set up as a defense cannot prevent a reference (Welsh V. Darragh, 52 N. Y. 590 ; Patterson v. Stet- tauer, 39 Superior [J. & S.J 413 ; Devhn v. Mayor, 54 How. Pr. 50 ; Kingsley v. City of Brooklyn, 1 Abb. N. Gas. 108; aff'd 7 Abb. N. C. 28; 78 K Y. 200; COMPULSORY REFERENCES. . 25 contra, Mayor v. Tenth Nat. Bank, 11 Eep. 475 ; McLean v. East Eiver Ins. Co., 8 Bosw. 700). Hall v. U. S. Eeflector Co., 14 Week. Dig. 48, aff'd 88 N. Y. '655, was an action to recover moneys loaned. Among other defenses the answer set up fraud. An order of reference was made. Held, affirming same, that though the question of fraud is ordinarily one which should be tried by a juiy, -yet it does not follow that because one of the issues is not referable that an order of reference cannot be made. § 21. Difficult questions of law. — Where it appears from the pleadings themselves, or it is made to appear by affidavit that difficult questions of law will arise on the trial, a compulsory order of reference wiU be •denied (MaGown v. Sinclair, 5 Daly, 63 ; Eochester V. Mayor, &c., 3 How. Pr. [N. S.J 527 ; s. c, 9 Civ. Pro. 526 ; Adams v. Bayles, 2 Johns. 374 ; Ives v. Vaude- water, 1 How. Pr. 168 ; Dane v. Liverpool & Lon- don Ins. Co., 21 Hun, 259 ; Shaw v. Ayrs, 4 Cow. 52.) The "difficult questions" must be questions of real difficulty (Anonymous, 5 Cow. 423). They need not, however, arise upon the pleadings, but may spring out of the evidence, likely or necessarily to be pre- sented (Goodyear v. Brooks, 4 Eobt [Superior] 682 ; s. c, 2 Abb. Pr. [N. S.] 296). But the objection that the trial will require the decision of difficult questions of law must be taken on the motion. It wiU be too late to raise it on an appeal from the order (Dustin v. Wallace, 13 Week. Dig. 518). [For a form of affidavit embodying the objection, .and decisions respecting its requirements, see the ■chapter on opposing the motion for a reference.] § 22. Peculiar actions. — (a) To recover penal obliga- tions under a statute. A compulsory reference of the issues wiU not be ordered in this class of cases. In an action to enforce the hability of a trustee of a corpora- tion under the " manufacturing companies act " Laws 26 COMPULSORY REFERENCES. of .1848, c. 40^ § 12, for the omission to file the annual- report, the plaintiff moved for a compulsory reference- of the issues, on the pleadings, and on an affidavit that the debt incurred by the corporation was for labor and materials ; and that the proof would involve a long account of more than thirty items. Held, that the- motion must be denied. Hyatt v. Konch, 1 Abb. N. C. 125. (6) Attorney's Bills. As to the propriety of order- ing I'eferences in these actions, though long accounts, be involved, the courts have sometimes expressed themselves adversely (Bradley v. Eager, 5 Week. Dig. 330 ; Merritt v. Vigehus, 28 Hun, 420 ; [Learned and Westbrook, J J., dissented] Waring v. Chamberlain, 14r Week. Dig. 564; Flanders v. OdeU, 16 Abb. Pr. [N. S.} 247; s. c, 2 Hun, 664; Foxu. Fox, 24 How. Pr. 409 ; Mar- tin V. Windsor Hotel Co., 10 Hun, 304). In O'Dwyer V. Mack, N. Y. Daily Reg., May 15, 1884, Daniels, J., sums up the objections, to such references as follows : "A very general disposition is manifested by parties contesting the biUs of attorneys and counsel to resist their trial before a referee. The disposition to do so- has arisen out of the fear that the fraternal friendship- of the referee might bias his judgment in the decision of such a controversy. It may not be generally well. founded, but inasmuch as it exists and is urged upon the attention of the courts, it becomes necessary to- yield to it for the purpose of securing and preserving^ the confidence of parties in the disposition of their legal controversies. And even though it may be pro- ductive of some embarassment in the business of th& circuit, it has become necessary to submit to it to avoid a conviction on the part of the defeated parties in controversies of this nature that their cases have not been impartially considered. Good poHcy requires, that occasions should not be given for the adoption of unfavorable conclusions of this nature. For that rea- son controversies of this description have usually been directed to be tried by a jury." But in spite of this, the instances where such actions. COMPULSORY REFERENCES. 2T have been referred are numerous (Hale v. Swinburne, 17 Abb. N. C. 381 ; Bowman v. Sheldon, 1 Duer, 607 ; Byrne v. Delmater, 1 Month. L. Bui. 62 ; Stebbins v. Cowles, 30 Hun, 523 ; Schermerhorn v. Wood, 4 Daly, 158 ; Perry v. RoUins, 56 How. Pr. 242). An action to recover back moneys wrongfully paid an attorney for alleged services is referable (Paulison V. Field, 22 N. Y. Week. Dig. 48). (c) Insurance Policies. In actions upon policies of fire and marine insurance, where there is no charge of fraud, and long accounts are involved, references may be ordered (Ryan v. Atlantic Mutual Insurance Co., 50 How. Pr. 321 ; Godfrey v. Williamsbui'gh City Fire Ins. Co., 12 Abb. Pr. [N. S.J 250). But if the answer sets up fraud, a compulsory reference will not be ordered (McLean v. East River Insurance Co., 8 Bosw. 700 ; Freeman v. Atlantic Mutual Ins. Co., 13 Abb. Pr. 124 ; Levy V. Brooklyn Fire Ins. Co., 25 Wend. 687). But contra, Lewis v. Irving Fire Ins. Co., 15 Abb. Pr. 303, where actions were brought to recover under policies of insurance for loss by fire of a stock of goods, embracing many items. Defendants charged fraud and moved for a reference. The motion though opposed was granted. (d) Miscellaneous. In an action to compel the specific performance of an agreement to sell and convey realty, defendant is entitled to a jury trial on the sub- ject of damages, and cannot be deprived thereof by a compulsory reference (Stevenson v. Buxton, 37 Barb. 13 ; 15 Abb. Pr. 352). In an action to set aside fraudu- lent conveyances, releases and settlements, there should not be a reference of the issues on compulsion (Rochester v. Mayor, &c., 3 How. Pr. N. S. 527 ; s. c, 9 Civ. Pro. 226). 28 MOTION FOR A REFERENCE. CHAPTER in. Motion foe a Eefeeence of the Issues. § 1. What the Papers Must Show. § 2. When Motion is to be Made. § 3. Notice of Motion. Form of Notice of Motion. § 4. Making out Prima Facie Case. § 5. Requisites of Affidavit. (a.) By Whom to be Made. (5.) General Allegations insufficient. (c.) As to Where the Venue is Laid. Forms of Affidavits on the Motion for a Reference. § 1. What the papers must show. — The authority of the court to order a reference of the issues is predicated upon the papers (Eoss v. Combes, 37 N. Y. Superior, 289; Dane v. Liverpool & London Ins. Co., 21 Hun, 259; Bates V. Eagleton Mfg. Co., 10 Civ. Pro. 218.) These consist of the pleadings, an affidavit to be made by the party, or if good cause is shown why the party cannot make the affidavit, by his attorney, and the other papers in the action, including the bill of particulars if there is one. The court may, where from the plead- ings a prima facie case for a reference would not be made out, direct a reference on the strength of the affidavit alone (DeGraff v. Mackinley, 38 Super. Ct. [J. & S.] 203) and conversely on the strength of the pleadings alone (Holmes v. Bennett, 28 How. Pr. 289). § 2. When motion is to he made. — The motion cannot be made until the cause is at issue (Jansen v. Jansen, Under the practice before the Code of Procedure, where both parties moved for a reference, the motion of the party first giving notice was entitled to a preference in the selection of the referees. Graham v. Wood, 1 Wend. 15. MOTION FOR A REFERENCE. 29 3 Cow. 31) both as to law and fact (Dutcher v. Wilgus, 2 How. Pr. 180). But as soon as the answer has been served the cause may be deemed at issue, and a party- is not boimd to wait to see if his opponent will amend (Enos V. Thomas, 4 How. Pr. 289). If the motion is made after the other side have served a notice of trial, the court may impose payment of the costs of prepar- ing for trial to date as a "condition of granting the motion (Fish v. Wright, 5 Cow. 269). § 3. Notice of motion.— The apphcation, if made out of the first judicial district, must be made at special term (Scudder v. Snow, 29 How. Pr. 95; Code Civ. Pro. § 770; rule 38 Cen. Eules Prac), and should be on eight days' notice (Code Civ. Pro. § 780). The motion for a reference of the issues is considered a non-enumerated motion. For a dictum to that effect, see Conway v. Hitchins, 9 Barb. 378. Form of Notice of Motion to Refer the Issues. Title of the case. Take notice that on the annexed affidavit, and on all the papers in this action, the undersigned will move this court at a special term to be held at • , on the day of , at o'clock in the morning, or as soon thereafter as counsel can be heard, for an order referring this action to one or more referees, and for such other and fur- ther relief as may be just. Bate A. B., To C. D., plaintiff's attorney, defendant's attorney, § 4. Making out prima facie case. — The moving party is not obliged to make out more than a prima facie case for a reference. Thus, he is not required to state in At chambers of the supreme court in New York County motions for a reference are numbered fourth in the list of preferred motions. 30 MOTION FOR A REFERENCE. his affidavit that the investigation on the trial will not require the decision of difficult questions of law. It is for the party opposing to show that the case is within the exception (Barber v. Cromwell, 10 How. Pr. 351). § 5. Eeqtiisites of affidavit. — (a). By whom to he made. The affidavit used on the motion should be made by a party to the action, or the reason of his failure to do so stated (Wood v. Crowner, 4 Hill, 548; Mesick v. Smith, 2 How. Pr. 7; Ross v. Beecher, Id. 157; Little V. Bigelow, Id. 164: Bolton v. McOullough, Id. 165). What is a sufficient excuse. In Little v. Bigelow, 2 How. Pr. 164, an affidavit on a motion for a reference was made by the law partner of plaintiff's attorney to the effect that the latter was then absent from the county of Erie where the venue was laid; that plaintiff resided at a remote part of the county of Erie, and could not, without inconvenience and loss of time, come to the city of Buffalo to have his affidavit drawn and sworn to. Held, denying the motion, that the affi- davit did not show a sufficient excuse for the plaintiff's failurt to make the affidavit for the motion. (6). General allegations insufficient. A mere state- ment that the action is for goods sold and deUvered is not prima facie evidence that the taking of a long ac- count will be involved on the trial (Whitaker v. Des- fosse, 7 Bosw. 678). Nor is a general statement that the examination of a long account will be involved enough (Kain v. Delano, 11 Abb. Pr. [N. S.l 29; Lord v. Connor, 48 How. Pr. 95; Sharp v. Mayor, &c., of New York, 31 Barb. 578; but contra, see Dean v. Empire State Mutual Insurance Company, 9 How. Pr. 69; Continental Bank Note Company r. Industrial Exhibi- tion Company, 1 Hun, 118; s. c, 3 Supreme Ct. [T. & C] 758). It is also well to state that taking the ac- count will dispose of all the issues in the case (Wheeler v. Falconer, 7 Eobt. 45). (c). As to stating wJiere the venue is laid. This, it is held, is not necessary (Cleveland v. Strong, 2 Cow. MOTION EOR A REFERENCE. » 31 44S; Feeter v. Hatter, 7 Cow. 478; but apparently con- tra, see Chubb v. Berry, 7 Wend. 483). Form of affidavit for reference of the issues. Title of the case. City and County of New York, s.s. I. A. B. [one of the parties'] or [stating an excuse for the j)arty^ s failure to laake the affidavit, attorney for ] being duly sworn says: That this action is brought to recover a balance of commissions for selling goods at defendant's request. That the dealings between plaintiff and defend- ant connected with said sales extend over a period of more than three years, and include at least fifty items of distinct sales, made at different times, to various persons. II. That there have been, during the course of said busi- ness, many credits and payments on each side hereto! That there has never been any settlement between the parties. III. That issue was joined on the day of 1888, by the service of an answer interposing a counter- claim for moneys advanced. IV. That the trial of this action will require the exami- nation of a loiig account on [either party'' s\ side of at least seventy-five items of goods sold, credits given and payments made between the parties at different times. Sworn to before me this ) . -p day of 188 f ^- -^• Form of affidavit on tlie pleadings. Title of the case. City and County of New York, s. s. I. A. B. being duly sworn, says that he is the [plaintiff^s'] or [defendants'] attorney herein. II. That issue was joined, in said action on the day of by the service of the answer. III. That it appears from an inspection of the pleadings, 32 MOTION FOE A EEPEEENCE. copies of which are hereto annexed, that the trial of thi& action will necessarily require the examination of a long account on \hoth sides] or on [either side]. Sworn to before me this ) . -p day of 188 f ^- ^- OPPOSING A EEPERENOE. 33 CHAPTER IV. Opposing a Eeference op the Issues § 1. Laches. § 3. Stipulation to Avoid a Reference. § 3. DiflScult Questions of Law. Form of AfHdavit that the Trial will Require the Decision of DiflBcult Questions of Law. § 1. Laches. — Delay in moving for a reference may be urged as a ground of opposition to the motion (Mayor, &c., v. Genet, 4 Hun, 658). § 2. Stipulation to avoid a reference. — Where the other side stipulates to admit the items, the trial of which necessitates the I'eference, no reference should be ordered (Mulhn v. Kelly, 3 How. Pr. 12). § 3. Difficult questions of law. — That the trial will require the decision of difficult questions of law, is an insuperable objection to the reference of the issues (Code Civ. Pro., §1013), but these " difficult " ques- tions must be questions of real difficulty (Anonymous, 5 Cow. 423). A statement in general terms, that diffi- cult questions of law are involved, is insufficient to defeat an otherwise meritorious apphcation (Ryan v. Atlantic Mutual Ins. Co., 50 How. Pr. 321). The par- ticular points of difficulty should be pointed out (Lusher V. Walton, 1 Cai. Rep. 149; Salisbury v. Scott, 6 Johns. 329; Patterson v. Stettauer, 39 Super. Ct. [J. & S.] 413; An objection that other defendants have not been served with pro- cess should be made on the hearing of the motion for a reference. If not made then, it cannot be urged subsequently against proceeding with the trial before the referee (Hawkins v. Avery, 32 Barb. 551). 3 34: , OPPOSING A REFERENCE. Dewey v. Field, 13 How. Pr. 437). One of the old cases does not go so far as this, but holds that a gen- eral allegation is sufficient (Low v. Hallett, 3 Cai. Eep. 82). [For other' objections which may be made, and con- siderations which should influence the court in decid- ing the motion, consult the chapter on compulsory references of the issues.] Form of affidavit that the trial will require the decision of difficult questions of law. Title of the case. City and County of New York, s.s. I. A. B. The defendant in the above entitled action being duly sworn, says : II. That this action is brought to recover the value of goods alleged to have been sold to deponent upon an implied promise to pay therefor. III. That deponent has fully and fairly stated this case to his counsel, C. D., residing at No. street, in the city of , and that the trial of this case, as deponent is advised by said counsel and believes, will require the decision of difficult questions of law. IV. That said difficult questions of law will arise as fol- lows : That upon the facts set forth in the pleadings in this case, it is a doubtful question whether the liability of this deponent is governed by the laws of this State or of the State of Massachusetts. That the statutes of the latter State on the subject in question have never received judicial con- struction. That the question of the constitutionality of such statutes under the laws of the United States will also be necessarily involved in this case, etc., etc. Sworn to before me this j day of 188 \ ^- ^- APPOIKTMEKT OP THE REFEREE. 35 CHAPTEE V. Appointment and Selection of the Eeperee. ■§ 1. Necessary Qualifications. § 2. Disqualifications. {a.) Judges. (ft.) Attorneys. (c.) Clerk of Courts. {d.) Bias. § 3. New Trial Before Same Referee. § 4. Residence of Referee. § 5. Number of Referees. § 6. Waiver § 1. Necessary qualifications.— § 1024, Code Civ. Pro.— A referee, appointed by the court, must be free from -all just objections; and no person shaU be so appointed, to whom all the parties object, except in an action to annul a marriage, or for a divorce, or a separation. A judge cannot be appointed a referee, in an action brought in the court, of which he is a judge, except by ihe written consent of the parties; and in that case he cannot receive any compensation as referee. Eule 80, Gen. Eules Prac. — Except in cases provided for by section 1011 of the Code of Civil Procedure,* no person, unless he is an attorney of the court in good standing, shall be appointed sole referee for any pur- pose in any pending action or proceeding. Nor shall any person be appointed a referee who is the partner or clerk of the attorney or counsel, of the party in whose behalf such application for such appointment is made, or who is in any way connected in business with such attorney or counsel, or who occupies the ;same office with such attorney or counsel. For instances where laymen were selected with attor- * See page 2 for this section in full. 36 APPOIXTMEXT OF THE REFEREE. neys to act as referees, see Townsend v. Glens Falls Ins. Co., 10 Abb. Pr. [N. S.] 277, where, in an action upon, policies of fire insurance, three referees ■were appointed^ two of whom were merchants. In Hale v. Swinburne, 17 Abb. N. C. 381, in an action to recover for attorney's fees, three referees were chosen, two of whom were not lawyers. In Olmsted v. Loomis, 9 N. T. 423, in a suit turning upon the right to use certain water supplying a mill, on an appeal, the court recommended a reference to suitable referees, one of whom should be- a capable engineer or mill-wright. § 2. Disqualifications. — (a) Judges. Art. 6, § 21, Con- stitution, provides: "No judicial officer, except jus- tices of the peace, shall receive to bis own use any fee& or perquisites of office; nor shall any judge of the court of appeals, justice of the supreme court, or judge of a court of record in the cities of New York, Brook- lyn, or Buffalo, practice as an attorney or counsellor in any court of record in this State, or act as referee.''' In Settle v. Van Evrea, 49 N. T. 280, this constitutional prohibition was held not to apply to a commissioner of appeals, he being a member of a Umited tribunal. In Countryman v. Norton, 21 Him, 17, where pending the reference of a claim against the estate of a decedent, the referee w^as appointed a justice of the supreme court, and thereafter, while a judge, i-endei'ed his report, it was held that an order denying a motion to set aside the re- port was error. Talcott, P. J., said : ' ' We cannot, there- fore, agree with the opinion of the learned justice wha made the order appealed from, delivered at the special term, that the provision of the constitution in question can be limited in its effect, and held to appl}^ only to a prohibition against the judicial officers named in the section from receiving fees cts referees. It seems to us if such was the. intention of the provision of the con- stitution, as the subject-matter was simple and easy of comprehension, it could, and would, have been ex- pressed in apt words to indicate an intention to exclude APPOINTMENT 07 THE REFEREE. 37 the judicial officei'S uamed in it from receiving fees when acting as referees, instead of prohibiting them altogether from acting as referees. It is conceded by "the learned justice who made the order appealed from, that the constitutional provision in question, if it is "to receive a liberal interpretation, is broad enough to prohibit the referee from further acting as such after he became a justice of the supreme court; and we think it must receive such interpretation." As to the disabilities of judges acting in cases in which they, or persons in intimate relations to them, are interested, see Code Civ. Pro. §§ 46, 47, 49, 50, 51. (6) Attorneys. As to disabihties of attorneys acting in cases in which they have figured officially, see Code ■Civ. Pro. §§ 78, 79, 80. (c) Clerks of courts. § 90, Code Civ. Pro. — "No per- son 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 courtf within either of the counties of New York or Kings, shall hereafter * be appointed, by any court or judge, a referee, receiver, or commissioner, except by the written consent of all the parties to the action or special proceeding, other than parties in default for failure to appear or to plead." {d) Bias. The mere fact that a referee, to whom the issues are referred, is the friend and legal adviser of a relative of one of the parties, does not warrant an inference of bias or partiality (Durant v. O'Brien, 2 How. Pr. [N. S.J 313). But if the referee accepts law business from one of the parties to the action, he is XLOt a proper person to act as referee (Stebbins v. Brown, 65 Barb. 272). And this is irrespective of the fact whether such retainer does or does not affect his decis- ion. Or if each of two attorneys in different actions has the cause of the cUent of the other in his hands to 655. § 8. Objections to evidence. — An objection that proposed evidence is inadmissible under the pleadings must be taken specifically. An exception to the finding in the report of the referee is not sufficient to raise the ques- tion of the admissibihty of evidence under pleadings- (Gibson v. Stetzer, 3 Hun, 539). § 9. Credibility of witnessls.— The degree of credit ta vphich a witness testifying before the referee is enti- tled is a question for the referee to determine (Beach v. Eaymond, 2 E. D. Smith, 496; Leach v. Kelsey, Y Barb. 466; Vandercook v. Cohoes, 12 Week. Dig. 84 ; Loonam V. Myers, 1 N. Y. State Eep. 276). A referee is not bound to give credence to the testi- mony of interested parties, though uncontradicted (Drury v. Wigg, 19 Week. Dig. 417). It is also the province of the referee to decide as to the weight which evidence is entitled to (Hogan v. Laim- beer, 3 Week. Dig. 27; Mem. of s. c, 6Q N. Y. 604). The right to refuse to answer upon a reference, rests with the wit- ness alone. Counsel have no right to advise their clients not to answer. Such conduct is highly improper and may amount to a contempt (Heerdt V. Wetmore, 2 Robt. 697). Written instruments, in evidence, may be compared by the referee to ascertain the genuineness of handwriting (Hunt v. Lawless, 7 Abb. N. 0. 113 ; aff'd in 47 Superior Ct. [J. & S.] 540). ■<8 RECEPTION OF EVIDENCE. § 10. Striking out evidence.— Improper evidence, admifc- "ted against objection, may be stricken out before the <;ase is submitted for decision (Marsh v. Kinney, 11 Week. Dig. 144). But after the proofs are closed, and the parties are no longer before the referee, he cannot reject evidence admitted on the trial by claiming to ■disregard it in making up his decision (Meyers v. Betts, 5 Den. 81 ; AHen v. Way, 7 Barb. 585 ; 3 Code R. 213). Eut, contra, see People ex rel. Wolford v. Streval, 15 Week. Dig. 88. § 11. Evidence taken tinder an informal order. — Where through inadvertence an informal order of reference ~vvas granted and witnesses were exanained before the referee, and on discoVery of the mistake a perfect order -was obtained and the witnesses were re-sworn before the same referee, the infoi'mality was deemed cured (Pearl v. Eobitschek, 2 Daly, 60). ■ §12. View. — A view of the locality, or subject matter in dispute, by the referee on consent of the parties, is not objectionable (West v. Kiersted, 15 Week. Dig. 549); but a private view, or a view where the referee is attended by witnesses for one of the parties, or the attorney for one of the parties, without the knowledge or consent of the other side, is error. In Yale v. Gwinits, 4 How. Pr. 253, the referee on the trial of a cause before him (during an adjourment) personally examined a piece of machinery, the utility of which was the subject of the litigation, and during such examination received explaAations of its opera- Brferee as a witness. In Morss v. Morss, 11 Barb. 610; 8. c, 1 Code R. N. S. 8T4; 8. c, 10 N. Y. Leg. Obs. 161, on a trial before three referees, the plaintiff's counsel against defendant's objection, called one of the referees as a -witness. Ho was sworn and examined. Seld, granting a motion to set aside the referee's report, for this irregularity, that the act was illegal because all the referee's were required to sit on the trial, and if one of them acted as a witness, the remaining two would no longer be a legally constituted tribunal. RECEPTION OF EVIDENCE. 79 tion by two of the plaintiff's material witnesses without the knowledge or consent of defendant, it was held a sufficient irregularity to vitiate the report and aU subsequent proceedings, Paige, J., said : '• The parties are indisputably entitled to the unbiased exercise of his judgment upon the evidence as given at a public liearing in their presence, uninfluenced by any conversa- tions held by him with third persons in relation to the matter in controversy. His decision should be founded alone upon the evidence regularly given on the trial of the cause in the presence of the parties. He is not allowed to decide the cause upon his own knowledge of the facts, nor upon any knowledge derived otherwise than from the evidence given on the trial. And he ought not to place himself in a situation which may expose him to be influenced in his decision by conversa- tions held with third persons in the absence of the parties." If a view taken by consent is otherwise regular, as the court on appeal cannot tell what the referee saw on the view unless it is disclosed in the record, his report as to the facts within his observation wiU be practically conclusive (West v. Kiersted, 15 Week. Dig. 549). A statement ,in the referee's report that his findings are based upon the proofs and "such view," -does not bring up the question of the sufficiency of the ■evidence to sustain the referee's findings, unless the •evidence of what was actually seen and done on the view is spread out in the case (Claflin v. Meyer, 75 N. T. 260 ; s. C., 31 Am. E. 467, rev'g 43 Superior Ct. [J. & S.J 1). § 13. A.ction or counterclaim founded on lost negotiable Taper. — § 1917, Code Civ. Pro. — Where it appears, upon the trial of an action, that a negotiable promissory note or bUl of exchange, upon which the action, or a coun- terclaim interposed in the action, is founded, was lost, whUe it belonged to the party claiming the amount due thereupon, he may prove the contents thereof, by 80 RECEPTION OF EVIDENCE. parol or other, secondary evidence, and may recover or set off the amount due thereupon, as if it was produced. But for that purpose, he must give to the adverse party a written undertaking, in a sum fixed by the judge or the referee, not less than twice the amount of the note or bill, with at least two sureties, approved by the judge or the referee, to the effect that he will indemnify the adverse party, his heirs and personal representa- tives, against any claim by any other person, on account of the note or bill, and against all costs and expenses by reason of such a claim. Under the statute formerly prevailing (2 E. S. 40^, §§ 75, 76) the bond of indemnity was also only required in cases when the lost instrument was negotiable (Wright V. Wright, 54 N. Y. 437; affirming 59 Barb- 605). Such a bond was not necessary where the instru- ment in suit was destroyed (Scott v. Meeker, 20 Hun, 161.) Form of undertaking where action or counterclaim is founded upon a lost neg'otiable instrument. Title of the case. Whereas the above entitled action is brought to recover payment of a note made by the defendant above named to the order of the plaintiff in the sum of dollars, and said note was lost while in the possession of and belonging to the plaintiff, and plaintiff is desirous of proving the contents of said lost note by parol or other secondary evidence. Now, therefore, we A. B. of and 0. D. of [stating residence and business respectively] do herebj', jointly and severally undertake to indemnify and hold harm- less the defendant, his heirs and personal representatives against any claim by any other person on account of said note, and against all costs and expenses by reason of such a claim, not exceeding the sum of • dollars. Date. A. B. C. D. RECEPTION or EVIDENCE. 81 Form of approval by referee. The witliin undertaking is hereby approved as to the form and manner of execution and as to tlie sufficiency of the sureties. Date. E. F., referee. 6 82 MOTIONS AT THE CLOSE OF THE EVn)ENCE. CHAPTER xnr. Motions at the Close op the Evidence. § 1. For Dismissal of Complaint. Form of Report for Defendant on Whole Case, dismissing Complaint. § 2. To Conform the Pleadings to the Proofs. § 3. Bringing in New Parties. § 1. For dismissal of complaint. — The rules applied by a judge on a trial in deciding a motion to dismiss the complaint on the evidence, or rather for failure to introduce evidence makiag out a cause of action, are to be applied by the referee in disposing of the same motion. The decision of a referee granting a motion made at the close of plaintiff's evidence, dismissing the complaint, is a decision that, as matter of law, there is no evidence to sustain the complaint, and if the evi- dence, although insufficient to constrain the referee to find for the plaintiff is such as would have required the submission of the question to a jury, and would have been sufficient to sustain a finding for plaintiff, it is error (Scofield v. Hernandez, 47 N. Y. 313). It is within the discretion of the referee to reserve his decision upon a motion for a non-suit, made at the close of plaintiff's evidence, untU the entire case is out and then to deny it (Hughes v. Griffith, 12 Week. Dig. 601). Though, upon a trial before a referee, if the plaintiff at the close of his evidence is non-suited and duly excepts, a question of law is raised upon which it is competent for the Gteneral' Term to reverse the judg- ment, if the decision was erroneous (Schofield v. Her- nandez, 4Y N. Y. 313); yet, in order to raise the question whether the referee correctly decided a motion made MOTIONS AT THE CLOSE OF THE EVIDENCE. 83 a,t the close of the evidence, a ruhng should be had -and an exception taken so that it shall appear that the ruhng was made upon the motion itself and not ■upon a consideration of the whole case, including -defendant's evidence. An exception to the findings of fact and conclusions of law of the referee dismissing the complaint upon the whole case, does not bring up ihe point (Van Derlip v. Keyser, 68 N. Y. 443). Torm of report for defendant on whole case dismissing' complaint. Title of the case. To the Court of In pui'suance of an order made in the above entitled action, by which it was referred to me to hear and determine the same, I do report that I have been attended by the parties and their coansel, and that, after hearing tiieir respective allegations and proofs, I do find as matter of fact that no account ever existed between the said defendants and the plaintiffs as alleged in the complaint in this action, -and thai the defendants are not indebted to the plaintiff in the sum in said complaint set forth, nor in any sum. And upon the foregoing facts I find as a conclusion of law that the complaint in this action be dismissed. And I do order judgment accordingly. Date. A. B., referee. § 2. To conform the pleadings to the proofs. — § 1018, Code Civ. Pro. — Upon the trial of an issue of fact, the referee exercises also the same power as the court, to allow amendments to the summons or to the pleadings. . . The powers of the court to allow amendments are •defined in § 723, Code Civ. Pro. — " The court may, upon the trial, or at any other stage of the action, before or after judgment, in furtherance of justice, and on such terms as it deems just, amend any process, pleading, or other proceeding, by adding or striking out the name •of a person as a party, or by correcting a mistake in the name of a party, or a mistake in any other respect^ 84 MOTIONS AT THE CLOSE OF THE EVIDENCE. or by inserting an allegation material to the case ; or, where the amendment does not change substantially the claim or defense, by conforming the pleading or other proceeding to the facts proved. And, in every stage of the action, the court must disregard an error or defect, in the pleadings or other proceedings, which does not affect the substantial rights of the adverse party." A referee under these sections of the Code of Civil Procedure has the same power to conform the pleadings to' the facts proved as the court, and it is not necessary that a decision of a referee on such a point should be confirmed by the special term (Knapp v. Fowler, 26 Hun, 200). His ruling on the subject should be full and unconditional and not subject to an application to be made at special term (Id). The proper mode of reviewing the decision is by exception and appeal (Quimby v. Claflin, 77 N. T. 2T0). A motion at special term to compel the referee to allow an amendment is out of order (Oregon Steamship Company v. Otis, 59 How. Pr. 254). The only limit to the power of a referee on a ti'ial of the issues to allow the amendment is that it shall not affect the issues upon the determination of which plaintiff's right to relief depends, or bring in a new cause of action (Price v. Brown, 98 N. Y. 388). If it does not substantially change the claim or defense he may allow the amendment (Knapp v. Fowler, 30 Hun, 512). For him to refuse to allow an amendment of this kind solely on the ground of want of power is error (Frazer v. Hunt, 18 Week. Dig. 390). Where an amendment, permitted on payment of costs, is made and the costs are accepted by the other side, they will be estopped from raising an objection that the referee was without power to allow the amendment because it changed the defense (Grattan v. Metropohtan Life Ins. Power to allow under Code of Procedure. The referee had power under the formerly prevailing Code of Procedure (§§ 178, 272) to per- mit an amendment of the pleadings to conform to the proof (Smith c. Rathbuu, 75 N. Y. 122 ; Chapin d. Dobson, 78 N. Y. 74). MOTIONS A.T THE CLOSE OP THE EVIDENCE. 85 Co., 80 N. Y. 281). If no objections to the reservation of his decision on a motion to amend are made, an allowance of the amendment in the referee's findings will be in time (Bean v. Edge, 46 N. T. Superior {J. & S.J 455). § 3. Bringing in new parties. — Ample power is given "the court, under section 452, Code Civ. Pro., to direct new parties to be brought in, when a complete determi- nation of the controversy cannot otherwise be had. The power to cause a party to be brought in by com- pulsory process belongs to the court alone, and cannot be exercised by a referee (Newman v. Marvin, 12 Hun, 236). Where the presence of other parties is necessary in the action, the referee should give an opportunity for an apphcation to the court to have them brought in by order, and where he extends this opportunity, and the necessary parties are not brought in, he may dis- miss the complaint. In Peyser v. Wendt, 87 N. Y. 322, the referee dismissed the complaint "without preju- dice," where at the close of plaintiff's evidence he granted leave to plaintiffs to apply to the court for an amendment of the summons and complaint, so as to bring in a necessary party defendant, and plaintiff refused to apply to the court for that purpose. It was held that the dismissal was proper. 86 REQUESTS TO FIND. OHAPTEE XIV. Eequests to Find. '■ § 1. The Statute. § 2. Necessity of Requests to Find. § 8. Refusal to find facts as Requested. § 4; How Requests are to be presented. § 5. How the Referee is to pass upon the Requests. § 6. Waiver of section 1023. Form of Requests to Find and Rulings. § 1. The Statute. — The taking of the evidence bein^ concluded, and the parties having summed up before^ the referee, they must, if they desire him to find any specific propositions of fact or law in his report, prepare and submit specific findings. § 1023, Code Civ. Pro. — Before the cause is finally submitted to the court or the referee, or within such, time afterwards, and before the decision or report is rendered as the court or referee allows, the attorney for either party may submit, in writing, a statement of the facts, which he deems estabhshed by the evidence, and of the rulings upon questions of law, which he- desires the court or the referee to make. The statement must be in the form of distinct propositions of law, or of fact, or both, separately stated ; each of which must be numbered, and so prepared with respect to its length,, and the subject and phraseology thereof, that the court or referee may conveniently pass upon it. At or before the time, when the decision or report is rendered, the court or the referee must note, in the margin of the statement, the manner in which each proposition has been disposed of, and must either file, or return ta the attorney, the statement thus noted; but an omission so to do does not affect the validity of the decision or report. REQUESTS TO FIND. ' 87 § 992, Code Civ. Pro.— An exception may be taken to the ruling of the court or of a referee, upon a question of law, arising upon the trial of an issue of fact. Except as prescribed in section 1180 of this act [referring to challenges of jurors] an exception cannot be taken to a ruUng upon a question of fact. § 993.— Upon the trial of an issue of fact by a referee, or by the court, withoat a jury, a refusal to make any finding whatever, upon a quastion of fact, where a request to find thereupon is seasonably made by either party, or a finding without any evidence tending to sustain it, is a ruhng upon a question of law, within the meaning of the last section. Eule 32, Gen. Eules Prac. — AU requests to find facts or conclusions of law must be made in writing to the judge or referee, before whom the trial was had, at or before the time of the submission of the action for decision, and the court or referee, shall not, after he shall have made and settled the findings and conclusions so submitted, make additional findings of fact or conclusions of law. § 2. Necessity of requests to find. — The provisions of the Code of Civil Procedure, and the rule of court above quoted, greatly simplify the practice. Under the Code of Procedure and rules of practice formerly.prevaihng, a party was not precluded from obtaining additional findings of fact or conclusions of law, by a failure to request them before the making of the report, but might have obtained them on the settlement of the case. This is no longer permitted. Under the old practice, if the referee, on the settlement of the case, refused to find at all in response to a specific request, the remedy was a motion at the special term to compel him to find one way or the other, or to send the report back to him for further findings. Under section 993 Code Civ. Pro. there is no longer any necessity for an appli- cation to the court for this purpose. The former prac- tice is not abohshed, but is deemed supplanted by the 88 REQUESTS TO FIND. provisions of section 993 (James v. Cowing, 82 N. T. 449; and see Potter v. Carpenter, Yl N. Y. 74). Unless a party requests specific findings in the manner pointed out in the Code and Eule, there is no power which will enable the referee, after he has made his report, to make any addittional findings of fact or conclusions of law (Gardiner u. Schwab, 34 Hun, 582; Grormerly v. McGlynn, 84 ]Sr. Y. 284 ; Budlong v. Lewis, 25 Hun, 310 ; Bamc v. Neuss, 2 N. Y. Civ. Pro. 185 ; Sisson v. Cummings, 35 Hun, 22). A party who desires a review of the facts on appeal from a judgment entered upon the report of a referee, must make requests to the referee to find such facts, and except on his refusal. When this is not done, the general term can only look into the evidence to determine whether or not there was sufficient evi- dence to sustain the findings of fact excepted to, and that such findings are not against the weight of evidence (Loonam v. Myers, 1 N. Y. State Eep. 276). To make a basis for an exception, there must be a finding by the referee upon the question sought to be reviewed, or a refusal to find one way or the other. After the referee has made and filed a decision, a state- ment made and filed by the party contemplating a review by appeal, stating how the findings should have been made by the referee, is of no avail (Forsyth v. Eickenbrode, 22 Week. Dig. 470). § 3. Refusal to find facts as requested. — In Stewart v. Morss, 79 N. Y. 629, the court of appeals impliedly rec- ognized the practice of excepting to refusals to find facts as requested, by deciding that in order to sustain an exception to the refusal of a referee to find facts as requested, it was incumbent to show that the material facts, so requested, were established by uncontroverted evidence, and that if found they would have affected the result. In Porter v. Smith, 35 Hun, 118, it was held that an exception to a refusal to find a fact as requested is unauthorized, on the ground that whether error has been committed in this respect, is to be deter- REQUESTS TO FIND. 89 mined by the appellate court upon the whole evidence and the requests to find facts. It is submitted, that this reasoning applies orily to general exceptions, but that in reference to particular refusals to find facts as requested, the practice impliedly recognized by the court of appeals in Stewart v. Moss, above cited, is a proper one. It is not error for a referee to refuse to make addi- tional findings at the request of a party, where such proposed findings are either included in the findings already made, or depend upon inferences to be drawn from evidence which is not conclusive (Stevens v. Mayor, <&c. City of New York, 84 N. Y. 296). § 4. How requests are to be presented. — The requisites of "the requests are tersely stated by Van Vorst, J., in Snif- fen V. Koechling, 45 Superior (J. & S.) 61 (special tei'm action). "We see," he says in that case, "no error in the refusal of the judge to pass upon the numerous requests presented to him by the defendant through his attorney, for the purpose of having the same passed upon, pursuant to section 1023 of the Code of Civ. Pro. 'The statement must be in the form of distinct proposi- tions of law or of fact, or of both, separately stated. They must be prepared in such form, that the court may conveniently pass upon them. In the same prop- osition should not be mingled, indiscriminately, state- ments of fact with conclusions of law. Such practice leads to confusion, and makes an intelligent disposition •of Ihe subject inconvenient for the judge below, and the appellate court upon review." The refusal of the judge in this case, to pass upon the requests for the Teason that the propositions material to be passed upon, -were so intermixed with statements of specific testi- mony and general statements of law, that the former •could not practically be distinguished, was held no error, and doubtless the same considerations are applicable to requests presented to a referee. A party cannot require a referee to find facts and conclusions of law against him, in such form as he may 90 BEQUESTS TO FIND. frame, and then to allow exceptions to such adverse findings and conclusions (Lefler v. Field, 47 N. Y. 407). Where a request to find presents more than one propo- sition, a referee is not bound to analyze it and pass. upon the several parts separately (Davis v. Leopold, 87 N. Y. 620; s. c, 13 Week. Dig. 337). The propositions permitted by section 1023, must be in the form of facts estabhshed, and not in the form of the evidence tending to estabhsh them (Friedman v. Bierman, 43 Hun, 387). In Quincy v. Young, 53 N. Y. 504, it was held that where a party proposes an enormously large number of findings in a manner hkely to mislead the referee, the circumstance that one material finding was lost sight of in a mass of details, might be deemed a suffi- cient excuse for its want of recognition by the referee. § 5. How the referee is to pass upon the requests. — A referee may answer the requests by "not found," or " not found as stated." By either form of words, h& declines to adopt the propositions submitted to him. (Davis V. Leopold, 87 JST. Y. 620). He does not dis- charge or exhaust his functions in this respect until he has noted his disposition of the propositions (Fried- man V. Bierman, 43 Hun, 387). Upon a trial at the- special term, a finding of fact was requested. The judge declined to find as requested "on the ground that the fact&and conclusions sought are not necessary to siistain the decision rendered. " To this refusal there was an exception. Held, that the ruling presented a question of law under section 993, and as the fact sought was material, the ruling was error, although the fact was not conclusively proved, and the evidence- as to it was confiicting (James v. Cowing, 82 N. Y. -449). This principle is applicable to trials before referees. § 6. Waiver of section 1023. — Upon the settlement of the case before the referee, exceptions were taken to findings and refusals to find by defendant. Held, that, while under Code Civ. Pro. § 1023, it was too late to. REQUESTS TO FIND. 91 interpose such exceptions at that time, the plaintiff by failing to object before the referee that the latter had! no authority to pass upon the requests, or make a. motion to strike them from the case as improperly there, waived the benefit of the rule established by the Code, and lost the right to the objection by his concur- rence in the practice adopted (Ward v. Craig, 8T N. T. 550). Form of requests to find and rnlings. Title of the case. The plaintiffs in the above entitled action request the- following findings of fact : I. That the plaintiffs on the 1st day of January, 1888, delivered to the defendants- 1,000 tons of anthracite coal. II. That said coal was sa delivered at the request of defendants [and upon their promise to pay four dollars. per ton for the same.] Found, A. B., referee. I find so much of this proposition as is not enclosed in brackets. As to the por- tion in brackets, I decline to find as requested, but find that no agreement was made respecting the price of said coal. A. B. referee. I decline so to find, but find that the plaintiffs are liable to the defendants in the sum of 600 dollars.' A. B., referee. I decline so to find. A. B., referee. V Date The plaintiffs in the above- entitled action request the following conclusions of law t I: That the defendants are liable to the plaintiffs in the sum of 4,000 dollars, for said coal. II. That interest is due on said 4,000 dollars since Jan- nary 1, 1888. C. D., Plaintiff's attorney. ■92 BEQUESTS TO FIND. Tecliuically the referee's rulings should be written ia the margin, but if this cannot be done without incon- venience, they may be written between the requests, or on a separate piece of paper. REPEEEE DELIBERATING UPON THE CASE. 9$ CHAPTER XV. The Referee Deliberating Upon the Case. § 1. Submission of Briefs. § 2. Power to Ke-open the Case for Further Testimony. § 3. Allowing Re-argument. § 4. Referee Desiring Consultation with or Advice from Attorneys, § 5. Stating Conclusion in Advance of Report. § 6. Suggesting Compromise. , § v. Bribery. § 8. Death or Transfer of Interest of a Party. § 9. Death of the Referee. Forms on Application for the Appointment of a New- Referee in Case of Death. Form of Notice. Form of Affidavit. Form of Order. § 1. Submission of briefs. — The referee may give coun- sel time for the submission of briefs, and extend their time for doing so. This is an inherent right or power of the referee, and unless his discretion in this partic- ular is abused, the court will not interfere with his action (Morrison v. Lawrence, 2 How. Pr. [N. S.] 72). § 2. Power to re-open the case to hear further testimony. — The referee has a discretionary power to re-open the case and receive further testimony (Ayrault v. Sackett, 9 Abb. Pr. 154; aff'd 17 How. Pr. 507; Duguid v. Ogil- vie, 3 E. D. Smith, 527; s. c, 1 Abb. Pr. 145; Cleaveland V. Hunter, 1 Wend. 104 ; Loonam v. Myers, 1 N. T. State Rep. 276). § 3. Allowing re-argument. — Before making his report the referee has power to allow a re-argument, and this, ^i REFEREE DELIBERATING UPON THE CASE. ■even after he has made up his mind (Litch v. Brother- son, 16 Abb. Pr. 384; s. C, 25 How. Pr. 407). § 4. Referee desiring consultation with or advice from attorneys. — If the referee desires additional light on any- subject relating to the cause submitted for decision, he should call the attorneys for each side before him, but should avoid all interviews respectiug the case, with either side alone. His duties in this respect were well stated by Spencer, J., in Townsend v: Glens Falls Ins. Co., 10 Abb. Pr. N. S. 211; s. c, 33 Superior Ct. (J. & S.) 130, as follows: " After the submission of a •controversy, a referee should not consult with, nor receive any suggestions or advice from, any of the par- ties or their respective counsel, in regard to the subject matter of the reference, or to his finding or report therein; except in the presence of the opposing party or his counsel. Eeferees, like judges, should avoid even the appearance or suspicion of unfairness or prejudice ' in the performance of their duties, and in all cases where they deem it necessary to hear the views of coun- sel, or obtain their assistance in regard to the case, or as to the form and substance of their report, they should exercise their undoubted power and privilege, by calling the respective counsel of both parties before them for that purpose, or request each of them to furnish a proposed formal report that should be made upon the general conclusions they have reached in the cause. " Friendly intercourse between the referee and one of the attorneys of the successful party, between the sub- mission of the case and the making of the report, may give rise to such a strong suspicion that the referee's mind was biased, as to render it necessary to set aside his report (Harlem Bank v. Todd, 4 Week. Dig. 64). § 5. Stating conclusion in advance of report. — A referee should not advise either side in respect to conclusions to which he has come in advance of the delivery of his report. This vicious practice opens the door to very REFEREE DELIBERATING UPON THE CASE. 95 great abuse and may, in a flagrant case, be ground for setting aside the report (Ayrault v. Sackett, lY How. Pr. 461). In Dorlon v. Lewis, 9 How. Pr. 1, after the submis- sion of the case, the referee had repeated conversations with plaintiff's attorney in the absence of defendant's attorney, and with defendant's attorney in the absence •of plaintiff's attorney, in relation to the questions pend- ing before him. Plaintiff's attorney had been a wit- ness on the trial. The referee prepared an opinion , adverse to plaintiff and showed it to him, not for the purpose of deciding the case, but to see its effect, and "thereafter plaintiff's attorney called on the referee and persuaded him to change the opinion and report adversely to defendant. It was held that the report must be set aside, whether the irregularities did or did not affect the referee's mind. Allegations of improprieties of this character must Tse affirmatively proved. Mere suspicions of irregular- ities committed with the unsuccessful side, will not sufiace (Gray v. Fisk, 12 Abb. Pr. [N. S.] 213). § 6. Suggesting compromise. — It is entirely out of the referee's province to go to the parties, or to either of them, and attempt to suggest or negotiate a compro- mise. *[n Livermore v. Bainbridge, 14 Abb. Pr. (N. S.) 227; aff'g 44 How. Pr. 357, after the cause had been -submitted for decision the referee called on one of the parties, and said in substance that he, the referee, had not at all come to any conclusion about the case, but that there were matters in evidence which led him to believe that if he did give judgment for the defendants it would necessarily be for a large amount. It was held that the report and subsequent proceedings must be set aside, irrespective of the question whether the referee's mind was affected by the irregular act or not. 96 REFEREE DELIBERATING UPON THE CASE. § Y. Bribery.— § 71, Penal Code.— A person who gives or offers, or causes to be given or offered, a bribe, or any money, property, or value of any kind, or any promise or agreement therefor, to a judicial officer, juror, referee, arbitrator, appraiser, or assessor, or other person authorized by law to hear or determine any question, matter, cause, proceeding or controversy, with intent to influence his action, vote, opinion or decision thereupon, is punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dollars, or both. § 73, Penal Code.^ — A juror, or a person drawn or summoned to attend as a juror, or a person chosen arbi- trator, or appointed referee, who either, 1. Makes any promise or agreement to give a verdict, judgment, repoit, award, or decision, for or against any party; or, 2. Willfully receives any communication, book, paper, instrument, or information relating to a cause or mat- ter pending before him, except according to the regular 'course of proceeding upon the trial or hearing of that cause or matter. Is guilty of a misdemeanor. § 74, Penal Code. — A juror, referee, arbitrator, ap- praiser, or assessor, or other person authorized by law to hear or determine any question, matter, cause, controversy or proceeding, who asks, receives, or agrees to receive, any money, property, or value of any kind, or any promise or agreement therefor, upon any agree- ment or understanding that his vote, opinion, action, judgment or decision, shall be influenced thereby, is punishable by imprisonment for not more than ten years, or by a fine of not more than five thousand dol- lars or both. § 75, Penal Code, provides, that for all attempts by persons to improperly influence jurors, referees, etc., in any manner not included within the last two sec- tions, the parties shall be guilty of a misdemeanor. Whether criminal or not, and irrespective of the REFEREE DELIBERATING UPON THE CASE. 97 fact whether the acts did or did not affect the referee's decision, it has been held that for a referee to accept a retainer from one of the parties to an action pending before him, to prosecute and collect suits for said party is a sufficient irregularity to necessitate the setting aside of the referee's report in favor of the party (Steb- bins V. Brown, 65 Barb. 272). And so unsuccessful importunities for favors from the defeated party, giving rise to a presumption of bias in the referee's mind against him, have been deemed a sufficient basis to set aside the referee's report (Burrows v. Dickinson, 35 Hun, 492). And demands of fees by the referee in excess of the sum allowed by statute (Grreenwood v. Marvin, 29 Hun, 99). § 8. Death or transfer of interest of a party. — The rules prevailing in trials before the court respecting the pro- ceedings to be taken on the death, or transfer of inter- est of a party, govern on trials before referees. Application must be made to the court. If the cause of action survives or continues, the action does not abate (Code Civ. Pro. § 755). Code Civ. Pro. § 763. — If either party to an action • dies, after an accepted offer to allow judgment to be taken, or after a verdict, report, or decision, or an interlocutory judgment, but before final judgment is entered, the court must enter final judgment in the nahies of the original parties ; unless the offer, verdict, report, or decision, or the interlocutory judgment, is set aside. § 764. — After verdict, report, or decision, in an action to recover damages for a personal injury, the action does not abate by the death of a party, but the subse- quent proceedings are the same as in a cause where the cause of action survives. Under the Code of Proced.ure formerly prevailing, judgment could also be entered when the report was completed 'before the death of the party (Scranton v. Baxter, 1 Code R. N. S. 88; 3 Sandf. Superior, 660; Ehle t>. Moyer, 8 How. Pr. 244). 7 98 REFEREE DELIBERATING UPON THE CASE. § 766. — This title does not authorize the entry of a judgment against a party who dies before a verdict, report, or decision is actually rendered against him. In that case the verdict, report, or decision, is absolutely void. § 766 governs actions or special proceedings brought by public receivers, and trustees appointed by virtue of statutes, in vs^hich case death does not have the effect of an abatement. The death of a party and the substitution of his suc- cessor, in a case where such substitution may be prop- erly made, do not operate to supersede the order of reference, or invalidate the prior proceedings (Chit- tenango Cotton Company v. Stewart, 67 Barb. 423). The substitution having been made, the reference shoula proceed from that point as though no death had occurred (Moore v. Hamilton, 48 Barb. 120 ; aff'd M N. Y. 666). Mr. Edwards, in his treatise on referees, page 815, recommends that the order reviving or continuing the action "had better refer to the fact that the action is before a referee, and expressly order that this action ■ and the proceedings therein stand revived against the said , and , executors as. aforesaid, as defendants herein, and that the said referee continue the matters and testimony before him at the very 'point where it was broken off by death, and with the same force and effect as though there had been no death, and as having reference simply to change of names of par- ties.'^ There is this distinction to be observed between the formal revival of an action in the names of the legal successors of a party, and the bringing in of entirely new parties for the purpose of doing com- plete justice. In the latter case, in actions not compul- sorily referable, the new parties have a right to object to the evidence already taken, and even to the selection of the referees (Wood v. Swift, 81 N. Y. 31); which right the formal successors of a party brought in merely to revive the action, do not possess. REFEREE DELIBERATING UPON THE CASE. 99 The "decision" referred to in § T65, Code Civ. Pro., "has been held to mean the court's written findings of facts and conclusions of law, with the directions for the final judgment, and not a mere opinion in such form, though the latter be delivered before the death of the party (Adams v. NeUis, 69 How. Pr. 385). No ■doubt this principle is apphcable to the reports of referees. § 9. Death of the referee. — If after rendering a report the referee dies, the case need not, necessarily, be retried, but judgment may be entered thereupon (Juliand v. Grant, 34 How. Pr. 132). The death of a sole referee before making a report, in an action referable by consent, terminates the refer- ence. And this is true where two of three referees die before a report is made (Emmet v. Bowers, 23 How. Pr. 300). To avoid the effects of this rule, Van Hoesen, J., in Devlin v. Mayor, 62 How. Pr. 260, in granting an order of reference to three persons, directed a clause to be inserted in the order, that if either of the referees should die, etci, the trial should then proceed before a single referee. When a cause is referred by consent, and the referee ■dies before rendering a report, it puts an end to the reference, as above indicated, because the extent of the ■consent is that the cause may be tried and decided by the particular person whom the parties have agreed upon. But where the cause is referable in its nature, and has been referrfed by the court upon motion, the only effect that the death of the referee has, is that nothing has been accomplished, and a new referee will be appointed on motion (Devlin v. Mayor, 62 How. Pr. 163 ; 11 Week. Dig. 116 ; 9 Daly, 334). To avoid an ■entirely new trial before the referee to be appointed, the parties, if competent, might consent to let the tes- timony taken, up to that point, stand, or that the referee render a decision upon the testimony taken, 100 REFEREE DELIBERATING L'PON THE CASE. otiierwise it is submitted that the trial must take place- de novo, before the new referee. Forms on application for the appointment of a new referee ii* case of death. Form of notice. Title of the case. Take notice that upon the annexed affidavit, and all the- papers, orders and proceedings herein, the undersigned will move this court at special term, to be held at , on the- day of , at o'clock in the morning, or as soon thereafter as counsel can be heard, for an order appointing- some suitable person referee, under the order of reference,, dated , in this action, to hear and determine the- issues joined herein, in the place and stead of A. B., deceased,^ to vphom this cause was by said order referred, and for suck other or farther order as may seem proper. Date C. D., plaintiff's attorney, To E. F., defendant's attorney, Form of affidavit. Title of the case. City and County of New York, s. s. I, CD., attorney for the above named plaintiff, being- duly sworn, say : This action was first referred by order of the day of , to A. B., that after several hear- ings and on or about the day of ' , said referee- died, leaving the reference undetermined. That there ha& been no change of parties since said order of reference was- made \ot if there has ieen indicate same']. Sworn to before me this ) day of j REFEREE DELIBERATING UPON THE CASB.J,|i. .^101 it's / .1 Form of order. Ati Present, Hon. Justice, Title of the case. On reading and filing the notice of motion lierein, and tlie affidavit of C. D., plaintiff's attorney, dated the day ■of , by which it appears that A. B., heretofore appointed referee by order, dated the day of , is dead. Now after liearing C. D., for the plaintiff, and E. F. in opposition, it is ordered, that G. H., counselor at law, be and he hereby is appointed sole referee,- in place of A. B., 4o hear and determine all the issues. 102 THU EEPORT, CHAPTER XVL The Eeport. § 1. Upon what Issues the Referee is to Pass. § 2. Only One Report. § 3. Who is Entitled to the Custody of the Report. § 4 Findings of Pact and Conclusions of Law to, be State* Separately. § 6. Formal Requisites. § 6. Directing ^Judgment Upon Trial of Isssue of Fact. § 7. Interlocutory Report in Equitable Actions. § 8. Directing Judgment on Trial of a Demurrer. § 9. Ignoring in Report Evidence Accepted on the Trial § 10. Awarding Costs. § 11. Extra Allowance. ' .Form of Certificate of Referee to use on Motion for aa Extra Allowance. § 12. Who may make the Report in the Case of Several Referees. § 13. Failure or Refusal to make a Report. § 14. Election to End the Reference. Fonns of Reports in Ordinary References to Hear and Determine. General Form (Issues of Fact). Report of Trial on Issues of Law. Report Directing that an Account be Taken. Report in Action for -Negligence. § 15. Judicial Functions End with Delivery of the Report. § 1. Upon what issues the referee is to pass. — Upon all the matters legitimately within the issues referred, the referee has power to pass in his report (Lee v. Tillotson, 24 Wend. 337), but he is not required to pass formally upon all the issues made by the pleadings. If there are issues upon which no evidence was given, he need not notice them in his report. He is not obhged to neg- ative them in express terms (Ingraham v. Gilbert, 20 Barb. 151; Sermont v. Baetjer, 49 Barb. 362; McCulloch,. V. Wellington, 21 Hun, 5 ; Patterson v. Graves, 11 THE REPORT. 103 How. Pr. 91). Strictly speaking, it is only necessary to pass upon the questions entering into and forming the basis of the judgment to be entered (Sermont v. Baet- jer, 4:9 Barb. 362 ; Quincey v. Young, 5 Daly, 44). But these issues he cannot ignore (Colhns v. Clark, 54 Barb. 184). He should make such findings of fact as are necessary to sustain his conclusions of law (McAndrew V. Whitlock, 2 Sweeney," 623; afif'd 52 N. Y. 40). A con- clusion of law, involved in the issues made by the pleadings and necessarily flowing from the facts found, where there is no fact found hostile to it, need not be expressed in terms (Cagger v. Lansing, 64 N. Y. 417). Where a referee has passed upon all the issues mate- rial to a decision of the case, stating his facts found and conclusions of law separately, he has discharged his whole duty in respect to form (Marston v. Johnson, 13 How. Pr. 93). When evidence of facts not strictly within the issues as made by the pleadings, is received on the trial before ;the referee without objection, and becomes one of the issues tried, an objection to a finding by the referee in reference to such facts, as not being within the issues raised by the pleadings, will not be listened to (Fallon v. Lawler, 102 N. Y. 228). . § 2. Only one report. — A referee should not deliver two documents, each of which purports to be the origi- nal of his report to both parties, even if they are du])]i- cates, as such a practice produces confusion (Currie v. Cowles, 7 Eobt. 3). In Niles v. Battershall, 18 Abb. Pr. 161; s. C, 2 Eobt. 146; 27 How. Pr. 381, where a referee made simultaneously two reports, one general, finding a certain sum due, and the other special, containing findings of fact and conclusions of law, and finding the same sum due as in the other report, Held, that the general report might be disregarded as superfluous. § 3. Who is entitled to the custody of the report. — The successful party is entitled to the custody of the report. lOi THE REPORT. Ill Richards v. Allen, 11 N. Y. Leg. Obs. 159, a referee leported in favor of the plaintiffs, and on the plaintiffs neglecting to take up the report, he dehvered it, on pay- ment of ~ his fees, to the defendant. Held, that the referee was in error; that the report should have been delivered to the successful party; and on the defendant's failure to file the report, the referee was ordered to make a new one, and deUver the same to plaintiff's attorney. Ingraham, J., says : '' The plaintiff was in error when he neglected to take up the report. It was his duty to do so, and to pay the referee's fees, for which he was liable; but the referee was also in error in deliv- ering the report to the defendant. ' The report was against him, and any party would be willing to pay the referee's fees on a report against himself, if thereby he could obtain possession of the report and prevent his successful adversary from perfecting his judgment. The report should be dehvered to the successful party, and the other party has no right to the possession of it." § 4. Findings of fact and conclusions of law to be stated separately. — § 1022, Code Civ. Pro. — The decision of the court, or the report of the referee, upon the trial of the whole issue of fact, must state separately the facts found, and the conclusions of law. This was also the rule under the foi'mer Code of Procedure and general rules of practice. It was deemed a matter of substan- tial right that the referee's report should be in this form, and for an omission to make it so, the remedy under the former practice was usually a motion to send the report back to the referee for correction, in this res- pect, or to make a further report (Tihnan v. Keane, 1 Abb. Pr. N. S. 23; Van Steenburgh v. Hoffman, 6 How. Pr. 492; Snook v. Fries, 19 Barb. 313; Church v. Erben, 4 Sandf. 691 ; Mauley v. Ins. Co. of North America, 1 Lans. 20), and the court could of its own motion send the report back to the referee for this purpose (Snook V. -Fries, 19 Barb. 313). If sending the report back for . THE REPORT. 105 ■correction was impracticable, or would not effect the -object sought, the remedy was a motion to set it, and the judgment entered thereupon, if any, aside (Peck v. Torks, li How. Pr. 416; Wright v. Sanders, 28 How. Pr. 395). The parties might, however, by stipulation, waive the rule (Smith v. Eowley, ^6 Barb. 502). It is believed that these remedies are not abrogated by the 'Code of Civil Procedure (Kicketts v. Wessels, 12 Week. Dig. 397); but that in order to get the benefit of them, the party objecting to-the referee's report must show "that he requested the referee, at the trial or before the final submission of the case, to specifically find such facts and conclusions as he seeks by motion to have- inserted in the report (Gove v. Hammond, 48 How. Pr. •385; Drury v. Wigg, 19 Week. Dig. 417). § 5. Formal requisites. — (a.) Findings of fact. The :facts as found from the evidence, and not the evidence itself, should be stated (Matter of Hemiup, 3 Paige, 305 ; Lane v. Borst, 5 Eobt. 609 ; Jarvis v. Jarvis, 66 Barb. 331 ; Patterson v. Graves, 11 How. Pr. 91 ; Dorr V. Noxon, 5 How. Pr. 29; Avery v. Foley, 4 Hun, 415). ""If a fact is fuUy admitted by both parties on the pleadings, it is needless and improper to make it a spe- cial finding" (Hoffman, Eef. p. 61). A referee is not required to state the steps or mental processes leading him to a conclusion of fact. It is sufficient ■ that he ;states the conclusion itself (Potter v. Carpenter, 71 N. Y. 74; Avery v. Foley, 4 Hun, 416j Wilson v. Knapp, 42 Super. Ct. [J. & S.J 25 ; Dolan v. Merritt, 18 Hun, 2,1). If a referee states in detail the facts constituting a transaction, his finding as to the effect of such facts may be regarded as a conclusion of law (Hotchkiss v. Mosher, 48 N. Y. 478). A general finding of fact by a referee in his report is controlled by a special finding -of fact (Bennett v. Buchan, 76 N. Y. 386 ; Phelps v. Vischer, 50 N. Y. 09). A finding of fact cannot be made except upon evidence before the referee (Putnam V. Hubbell, 42 N. Y. 106). 106 THE REPORT. Documents, the authenticity of which is unques- tioned, need not be repeated in a finding (Hoffman Ref. 61). (&.) Conclusions of law. Conclusions of law (or of fact) are not to be stated in an argumentative "v^aj (Mills V. Thursby, 12 How. Pr. 417 ; Glacius v. Black, 50 N. T, 145). A referee, where the issues are material and necessary to support the judgment, must find one way or the other, he cannot find in a case of conflict- ing evidence that it "leaves the mind in doubt." Where conflicting evidence really leaves the referee's mind in doubt, his duty is to find the facts axiversely ta •the party holding the affirmative (Bradley v. McLough- lin, 8 Hun, 545; Strong v. Place, 4 Eobt. 3S5 ; s. c, 33- How. Pr. 114). Conclusions of law (or of fact) should be stated without repetition, and in the most concise and direct manner (Glacius v. Black, 50 N. T. 145). All computations in reports should be in dollars and cents, and not in fractions (Dimiont v. Nicholson, 2' Barb. Ch. Tl). A referee should not antedate his repoi't, but dat^e it of the time when he actually signs it (Fuller V. Squire, 8 How. Pr. 121). § 6. Directing judgment upon trial of issue of fact. — § 1022, Code Civ. Pro., provides, that the report of a referee upon the trial of the whole issue of fact must direct the judgment to be entered thereupon. Under § lOSO, where double, treble, or other increased damages, are given by statute, the report must specify the sum awarded as single damages, and direct judgment for the increased damages. It is suggested in Currie v. Cowles, 7 Eobt. 3, that a referee should report not that a party is entitled t» recover, but that he do recover. It is difficult, how- ever, to see any important difference between the twa modes of expression. § 7. Interlocutory report in equitable actions. — Where an equitable action is referred to hear and determine, and THE REPORT. lOT the referee decides that the taking of an. account ■will be necessary before conaplete judgment can be made, the referee reports that fact, specifying upon what basis judgment is to be awarded between the parties- to the action after the account shall have been taken. The referee, it is submitted, may proceed and take such account himself (Palmer v. Palmer, 13 How. Pr. 363 ; Ludington v. Taft, 10 Barb. 447). Where the- referee reports only in favor of the plaintiff's right to- an accounting, but does not take and state the account, himself, the plaintiff may apply for an interlocutory- judgment in conformity with the report (Hathaway v. Russell, 45 N. Y. Superior [J. & S.J 538). A statement that " the defendant should be ordered and adjudged to account," has been deemed a sufBcient compliance with § 1022, Code Civ. Pro., requiriog the report of the referee to direct the judgment to be entered, and entitling the successful party to a judgment in con- formity therewith (Hathaway v. Russell, 46 JST. Y. Superior [J. & S.] 103). Where the referee does not take the account himself, which is deemed the better- practice, but simply reports that an account is neces- sary, the judgment entered on the report will direct the- taking of the account either by the same referee, or if he dechnes or is unable to take it, the court will send. the case to another referee for the purpose (Mundorff v. Mundorff, 1 Hun, 41 ; s. c, 3 Supm. Ct. [T. & C] ITI^ Cheeseman v. Wiggins, 1 N. Y. Supm. Ct. 595 ; Tru- fant V. Merrill, 37 How. Pr. 531). Whether such last named reference can be obtained, ex parte, is doubtful. The better practice it seems, would be to obtain it on notice (Palmer v. Palmer, 13 How. Pr. 363 ; Bantes v, Brady, 8 How. Pr. 216). § 8. Directing judgm&nt on the trial of a demurrer. — §1021, Code Civ. Pro. — The decision of the court, or the- report of a referee upon the trial of a demurrer, must direct the final or interlocutory judgment to be entered thereupon. Where it directs an interlocutory judg- lOS THE REPORT. ment, with leave to the party in fault to plead anew, oi' amend, or permitting the action to be divided into two or more actions, and no other issue remains to be •disposed of, it may also direct the final judgment to be entered if the party in fault fails to comply with any of the directions given or terms imposed. § 9. Ignoring in report evidence accepted on the trial. — This unfair practice is not tolerated. In Meyers v. Betts, 5 Den. 81, a referee on the trial before him, received in -evidence the account books of defendant against plain- tiff's objection, but in his report stated " that the books •of the defendant were not allowed as evidence." Held, error, whether the books were competent evidence or not. Per Curiam, "After the trial is ended, and the parties are gone, the referee reviews his decision and •comes to an opposite conclusion and decides to exclude the books as testimony herein. This wiU not answer. The rights of parties may be seriously cornpromised by such a practice, and it might lead to serious abuse, if a judicial tribunal on the trial of the cause, should receive testimony which in a' subsequent stage of the ■case it determined to disregard." To the same effect, Allen V. Way, 7 Barb. 585 ; 3 Code E. 243, but contra. People ex rel. Wolford v. Strevel, 15 Week. Dig. 88. See § 10, page 78. § 10. Awarding costs. — Where costs are of course, ilowing to the successful party on the facts found, the referee has no discretion as to which party is entitled thereto (Lanz v. Trout, 46 How. Pr. 94; Tilman v. Xean, 1 Abb. Pr. [N. S.] 23 ; Fuller v. Conde, 47 N. Y. .«9 ; Burdick v. Hale, 13 Abb. N. 0. 60; s. c, as Bundick V. Hale, 4 Civ. Pro. 311). The referee would not in «uch case have any control over the amount of the ■costs, nor could any action of his deprive the paity As to costs in actions against executors or administrators, see Mcr- icereau «. Ryerss, 12 How. Pr. 300 ; Bailey v. Bergen, 5 Hun, 555 ; 2 Hun, 620. THE REPORT. 109' entitled thereto of the costs. He should, however, indi- cate in the report that costs go to the successful pai-ty (Parker v. Baxter, 19 Hun, 410; Gilhland v. Campbell, 18 How. Pr. 177). Where costs are discretionary, the- referee, in references to hear and determine, has the authority and should pass upon all questions relating to costs (Barker v. White, 1 Abb. Ct. App. Dec. 95 -^ G-raves v. Blanchard, -i How. Pr. 300 ; Ludington v. Taft, 10 Barb. 447; First National Bank of West Troy V. Levy, 41 Hun, 461). With the referee's discretion respecting the award or denial of costs in this class of actions an appellate court will not interfere, except in case of palpable abuse (Barker v. White, 1 Abb. Ct. App. Dec. 95). § 1022, Code Civ. Pro. — In an action, where the costs are in the discretion of the coui^t, the decision or report must award or deny costs; and if it award costs, it must designate the party to whom costs, to be taxed, are awarded. Under § 3229, Code Civ. Pro., providing that where plaintiff is entitled to judgment against one or more of several defendants, costs may be awarded in the discre- tion of the court against the plaintiff in favor of' the other defendants, a referee has no power to award such costs. An application to the court is necessary (New York Elevated Eailroad Co. v. McDaniel, 31 Hun, 310). If the report as made and delivered contains no allu- sion to costs, it cannot thereafter be altered privately by the referee at the suggestion of a party to allow costs (Shearman v. Justice, 22 How. Pr. 241). § 11. Extra allowance. — While references are included within the term "trials," in which an extra allowance may be granted by the court (Niver v. Eossman, 5 How. Pr. 153 ; 3 Code R. 192), the referee is without power to grant an extra allowance himself on the ground of a " difficult and extraordinary case." The 110 THE REPORT. allowance must be made by the court (People v. Albany A Susquehanna E. E. Co., 5 Lans. 25 ; 57 K Y. 161 ; Howe V. Muir, 3 Code E. 21 ; Main v. Pope, 16 How. Pr. 271; Mver v. Eossman, 5 How. Pr. 153; 3 Code E. 192). The referee may grant a certificate which can be xised with the other papers on a motion made to the <30urt, specifying in what respect the case was difficult and extraordinary. The following form is from Edwards on Eeferees, page 78. Form of certificate of referee to nse on motion for an extra allowance. Title of the case. I, A. B., the undersigned referee, before whom the issues in this action were tried, do respectfully certify, that tlie ■case lierein was a difficult one to, try on the part of the plaintiff,[or defendanf\ for that, [here set forth the cause of its difficulty and time necessarily consumed^ and that, in my opinion, a percentage of per cent, on $ , being the amount recovered [or of the value of the subject matter involved'] to the plaintiff [or defendant], as a further allow- ance of costs in this action would be reasonable and proper. Date • A. B., referee. In Gould V. Chapin, 4 How. Pr. 185 ; 2 Code E. 107, the referee on a reference to hear and determine gave a certificate that "the investigation and trial of the «ause involved difficult questions of law, which required and evidently received much examination and prepara- tion on the part of the counsel for the respective par- ties. " The plaintiff thereupon moved at special term for an extra allowance. Held, denyiiig the motion, that the referee's certificate did not state what ques- tions arose on the trial, nor what the questions of law were, which he deemed difficult. THE REPORT. Ill § 12. Who may make the report in the case of several referees.— Under § 1026, Code Civ. Pro., a majority of the referees may sign the report. It has been held that two of three referees cannot sign a report in the absence of the third, unless all of then! have heard the proofs on the trial (Mclnroy v. Benedict, 11 Johns. 402), and that two cannot meet and sign a report without giving notice to the third to attend (Brower v. Kingsley, 1 Johns. Cas. 334) ; but if all of three referees meet to ■discuss the case and two of them agree to a proposed report, while the other dissents, the two who do agree may sign the report in the absence of the dissenting member (Clark v. Fraser, 1 liow. Pr. 98). The subject was examined with care in Townsend V. Glens FaUs Ins. Co., 10 Abb. Pr. (N. S.) 277; s. c, 33 N. Y. Superior (J. & S.) 130, and the following conclu- sions were established (head note) : (1.) The report of several referees procured by the successful party to be signed by the referees separately, without their having come to any agreement on a report while together, is irregular, although such party may have acted in good faith in procuring it. (2.) In causes referred to several referees, there must be a conference of all, and a substantial conclusion ■embodied in a report made by them when they are "together. (3.) After the hearing of the cause before three referees, and a consultation in which a majority fail to agree upon a conclusion or any findings, two of them cannot make a report .by signing separately their con- clusions, nor can two upon a conference agree to a con- ■clusion and make a report without a conference ■of aU. On appeal from the judgment entered on the report it will be presumed in the case of several referees, that all met and heard the proofs. The objection that all ■did not so meet, or did not properly meet to confer and sign the report, should be made at special term on a motion to set aside the report (Yates v. Eussell, 17 112 , THE EEPOPT. Johns. 462; Townsend v. Glens Falls Ins. Co., 10 Abb. Piv [N. S.] 277; s. c. 33 N. Y. Superior [J. & S.J 130). A report is considered made when it has been signed (Kissam v. Hamilton, 20 How. Pr. 3C9). By consent of the parties it may be made out of the jurisdiction of the court (Cooley v. Decker, 47 How. Pr. 188). § 13. Failure or refusal to make a report. — The cases where referees have wholly failed or refused to make any reports have been very few. Before the enactnient of the Code of Civil Procedure the remedy, on a refusal of the referee to report, was an application to the court for an order requiring him to report within a specified time, or to show cause why an attachment should not issue (Edward's Eef. p. 124 ; Hawkins v. Bradford, 1 Cai. 160; s. c, 1 Col. & Cai. 216 ; Stafford v. Hesketh, 1 Wend. 71 ; Thompson v. Parker, 3 Johns. 260). Under the Code of Civil Procedure, the fear of losing his fees in case he fails to make a report will in the great major- ity of cases be sufficient to induce the referee to render a report. Whether the referee can, under the present practice, be compelled to report has not yet been deter- mined. Where either party under section 1019, Code Civ. Pro., elects to terminate the reference, "the action must thenceforth proceed as if the reference had not been directed," but a case might readily be supposed, where after a protracted and expensive trial before, a referee that officer might refuse to make a i-eport, while neither party wished to elect to terminate the reference, but on the contrary each might be anxious that a report be made. Neither party might be in a position to stand another trial. In such a case, it seems to the writer, that a mandamus would lie to compel the referee to report. See Wood on Mandamus, page 20-23- and High on Extraordinary Legal Eemedies, §§ 149-152). If it were merely a question of punishing the referee for his misconduct or neglect of duty in this respect, contempt proceedings might be instituted under sec- tion 14 Code Civ. Pro. THE REPOET. 113 § 14. Election to end the reference.— § 1019, Code Civ. Pro. — Upon the trial by a referee of an issue of fact, or an issue of law, or where a reference is made as prescribed in section one thousand and fifteen of this act, his wiitten report must be either filed with the clerk, or delivered to the attorney for one of the par- ties, within sixty days from the time when the cause or mattei' is finally submitted ; otherwise either party may, before it is filed or delivered, serve a notice upon the attorney for the adverse party, that he elects to end the reference. In such a case the action must thenceforth proceed as if the reference had not been directed, and the referee is not entitled to any fees. (Section 1015 permits compulsory references upon questions incidentally arising.) (a.) To tuhat references § 1019 applies. The pro- visions of the Code, § 1019, respecting the delivery of the report of a refei'ee within sixty days, apply only to references of issues in actions, and not to references in special proceedings (Matter of Bannister, 2 Month. L. Bull. 46). Section 273, Code of Procedure, v/hich forms the basis of the present statute, was held inapplicable to references under the Eevised Statutes, such for instance as a reference of claims against the estates of deceased persons (Godding v. Porter, lY Abb. Pr. 374). Nor is the section applicable to a case where the order of reference requires the referees to report within a particular time. The referees in that instance would have no power to render a report unless within the time limited (Brower v. Kingsley, 1 Johns. Cas. 334). The section does not apply where the referee's time to make and deliver the report is extended indefi- nitely by stipulation (Ballou v. Parsons, 55 IST. Y. 673). Nor even where by stipulation his time is extended for a definite time and he exceeds the time so allowed (Thiesselin v. Eossett, 3 Abb. Pr. fN. S.J 54). In the last mentioned case, if the referee proceeds unreasona- bly to delay his report, application may be made 8 il-1 THE REPORT. to compel him to proceed and decide the case (proba- bly by mandamus). (6.) The party desiring to terminate the reference must manifest his intention to do so. A referee's report is not necessarily void because made and delivered after the expiration of the sixty days. No matter what time has elapsed since the final submis- sion of the case, if he actually makes and delivers the report before either of the parties takes any step to proceed in the action as though no reference had been ordered, the report will be valid (Foster v. Bryan, 16 Abb. Pr. 396 ; s. c, 26 How. Pr. 164 ; Livingston v. Gidney, 25 How. Pr. 1 ; Mantles v. Myle, 26 How. Pr. 409 ; Thiessehn v. Eossett, 3 Abb.. Pr. N. S. 54 ; Waters V. Shepherd, 14 Hun, 223). A party, by whose express request the referee delays the fihng and deUvery of the report, cannot elect to terminate the reference by rea- son of the delay caused for his own accommodation (Dwyer v. Hoffman, 39 Hun, 360 ; aff'd, 102 N. T. 725). The notice to end the reference must be signed by the attorney, and cannot come from the party himself (Halsey v. Carter, 6 Eobt. 535). When briefs are to be submitted, there is no submission of the case under section 1019, until the time to hand in briefs has passed (Morrison v. Lawrence, 2 How. Pr. [N. S.] 72.) (c.) What constitutes a delivery of the report. While it is settled that a referee is not bound to give up his report tiU his fees are paid (Fischer v. Eaab, 58 How. Pr. 221 ; Geib v. Topping, 83 N. Y. 46), there has been some diversity of opinion as to whether, having com- pleted his report, he may, to avoid the effect of section 1019, Code Civ. Pro., simply notify the successful party that the report is ready for dehvery on payment of his fees ; instead of actually delivering the report or filing it. In Cornelius v. Barton, 12 Week. Dig. 216 ; Quackenbush v. Johnson, 55 How. Pr. 94 ; Thornton v. Thornton, 66 How. Pr. 119 ; Morrison v. Lawrence, 2 Ho\v. Pr. [N. S.J 72, the view was taken that actual delivery, under the circumstances indicated, was not THE REPORT. 115 necessary, and a dictum to this effect Avas uttered in Geib V. Topping, 83 N. Y. 46, but other and we think sounder decisions are opposed to this doctrine. In Phipps V. Carman, 23 Hun, 150 ; aff'd 84 N. Y. 650, it is held that the referee does not do his duty under sec- tion 1019 unless he delivers his report to the clerk to he filed, in case it is not taken up by the attorney after notification. In Little v. Lynch, 99 N. Y. 112 ; aff'g 67 How. Pr. 1 ; 5 Civ. Pro. 216, it was held that to prevent the termination of a reference under section 1019, the report must be actually delivered to the attorney of one of the parties, or filed with the clerk. When the referee has finished his report, and holds it ready for delivery, it has been decided that there is no consideration of public policy preventing him from entering into an agreement with the successful party, as a condition of the delivery of the report, that his fees shall be a Hen on the recovery in the action (Birdseye v. Goddard, 17 Week. Dig. 228) ; but held in Leonard v. Mulry, 93 N. Y. 392, that if the referee and the successful party making such an arangement know that the other side contemplate an appeal, the referee disqualifies himself from settling the case, and that in such case ic would be discretionary to set aside the referee's report and the judgment entered thereupon. These decisions leave the referee in a somewhat peculiar position. If he does not deliver or file the report he may lose his fees. If he files or delivers the report, and the successful party refuses to pay the fees, has the referee any remedy, and, if so, what is it ? The latest expression of judicial opinion on this subject, remits the referee to an action against the successful party for his fees. There does not seem to be any other remedy (Geib v. Topping, 83 N. Y. 46) unless there are funds under the control of the court out of which it can order the referee's fees to be paid, as where the successful party is a receiver appointed by the court (Attorney Genernl v. Continental Life Ins. Co., 17 Week. Dig. 147 ; 93 N. Y. 45). 110 THE REPORT. To constitute a delivery of a referee's report to the- attorney for the successful party, it must be put inta the latter's possession, with liberty to use it in carrying- on the subsequent proceedings upon it in the action, and made subject to his control. Allowing such attoi'- ney merely to receive the report for the sole purpose of reading it, is not a delivery (Birdseye v. Goddard, 17 Week. Dig. 228). (cZ.) The remedy. — Where the notice of an election ta terminate the reference has been properly given, yet not- withstanding, the report is thereafter filed, the remedy is a motion at special term to set it aside (Eichards v. Bloom, 5 Hun, 182; Niles v. Maynard, 28 How. Pr. 390)» Form of notice to end the reference Title of the case. Take notice that the report of the referee herein, not having been filed or delivered pursuant to § 1019 of the Code of Civil Procedure. I hereby notify you, that the plaintiff elects to end the said reference. A. B., plaintiff's attorney. To C. D., attorney for defendant. To E. F., referee.* Forms of reports in ordinary references to hear and determine the issnes. [Reports in spiecial cases, etc., should be sought under the specific chapters relating thereto]. General form (issnes of fact). Title of the case. To the court of In pursuance of an order made in the above entitled action, by which it was referred to me to liear and determine * The statute doea not in terms require that the notice be served on the referee, but manifestly such would be the reasonable and safe prac- tice. Under the practice prevailing before the Code of Civ. Pro. the service of a notice of trial was a sufficient election to end the reference (Trist V. Cabenas, 18 Abb. Pr. 143; s. c, as Trist ». De Cabezas , 2 Robt. 708). THE EEPORT. 117 the same, I do respectfully report that I have been attended by the parties and their counsel, and that after hearing their respective allegations and proofs I find the following: Matters of fact [stating the findings of fact separately -and concisely']. I. II. As conclusions of law I find [stating the conclusions sep- arately, etc. I. II. III. That the defendant is indebted to the plaintiff in the sum of dollars, with interest on the same since the •day of , 1888, amounting to dollars, and that the plaintiff is entitled to judgment therefor against the •defendant with costs, or [that nothing is due to plaintiff from defendant., and that defendant is entitled to judg- ment against plaintiff for the costs of this action]. Date. A. B., referee. Report on trial of issues of law. Title of the case. To the court of In pursuance of an order made in the above entitled ^action, by which it was referred to me to hear and determine the issues of law arising on the demurrer interposed by the "'•defendant to the complaint, after hearing A. B., counsel for the defendant, and C. D., counsel for the plaintiff, and liav- ing duly considered said pleadings, I respectfully report as ■follows : I find as conclusion of law that the complaint in the above entitled action does not state facts sufficient to consti- tute a cause of action. I direct that judgment be entered herein dismissing the said complaint absolutely, with costs to the defendant [or directing an interlocutory judgment]. Date. taken. An appeal from a judgment entered upon the report of a referee, like appeals from other final judgments, is taken by serving upon the . attorney for the adverse party, and by filing with the clerk in whose office the judgment is entered, a writ- ten notice, to the effect that the appellant appeals from the judgment, or from a particular part thereof (Code Civ. Pro. §J.300). Provision is made in § 1302, Code Civ. Pro., for service of the notice of appeal, where the attorney for the adverse party is dead, or has been removed, or where for any reason the service cannot with due diligence be made within the state. The principles respecting the giving of security are the same on appeals from the judgments entered on the reports of referees, as on appeals from other final judgments. (c.) T'T'7io may appeal. Section 1294, Code Civ. Pro., . allows an appeal "to a party aggrieved, "not in default. This does not necessarily mean a party to the action. The section has been broadly interpreted to include any person immediately affected by the judgment who is aggrieved thereby. Thus in Hobart v. Hobart, 86 N. Y. 636, in an action for partition, it was held that a APPEAL FROM JUDGMENT. 141 referee could properly appeal from an order of the spe- cial term, which confirmed his report except as to fees, and ordered him to pay over certain moneys which he had retained as fees. {d.) What is brought up by an appeal from the judgment. A general appeal from the judgment does not bring up for review the order directing the refer- ence (Van Marter v. Hotchkiss, 4 Abb. Ct. App. Dec. 484). (e.) Errors deemed sufficient for a reversal. Errone- ous ruhngs, made during the course of the trial by the referee, if of sufficient importance, will necessitate a reversal. And so erroneous conclusions of law from facts found (Hickok v. Bliss, 34 Barb. 321). Material findings of fact, which are clearly against the evidence (Field V. Field, 73 N. Y. 588). Material findings of fact, without any evidence to support them (Mason v, Lord, 40 N. Y. 476; Code Civ. Pro. §993). Eefusals to make any findings upon facts established (Code Civ. Pro. § 993). But though the conclusions of law drawn from the facts found are inaccurate, no reversal will be ordered where the judgment actually rendered is proper upon such facts (Christensen v. Colby, 23 Week. Dig. 87; Flanders v. Crolius, 1 Duer, 206; Scott v. Pil- kington, 15 Abb. Pr. 280). (/.) Facts supplied by intendment on appeal. A finding of facts necessary to support a judgment, but not directly expressed by the referee, will be assumed on appeal, to support the judgment, where there is evi- dence in the case which would have justified such a finding (Erickson v. Quinn, 47 N. Y. 4lO ; Westcott v. Fargo', 6 Lans. 319 ; 63 Barb. 349 ; Wells v. Eoss, 6 Week. Dig. 154 ; Bennett v. Agricultural Ins. Co., &c,, 15 Abb. N. C. 234; Sinclair v. TaUmadge, 35 Barb. 602; Parker v. Baxter, 86 N. Y. 586 ; aff'g 19 Hun, 410 ; Chubbuck v. Vernam, 42 N. Y. 432 ; Cook v. Whipple, 55 N. Y. 150 ; Oberlander v. Speiss, 45 N. Y. 175 ; Bancker v. Mayor, &c. of N. Y., 8 Hun, 409). But this rule can only be applied when the evidence would 142 APPEAL FROM JUDGMENT. clearly warrant such findings (Walsh v. Powers, 43 N. Y. 23). The doctrine has no application to the sub- ject of costs flowing to the successful party, for over these the referee can exercise no control (Fuller v. Conde, 47 N. Y. 89). The converse of the general rule, above stated, viz., that findings of necessary facts, when supported by the evidence, will be assumed to support a judgment, is also true ; a general conclusion of law is deemed to embrace whatever findings of fact are essen- tial to it, when the latter are supported by the evidence and are the result of specific facts already found (Gib- son V. Stetzer, 3 Hun, 539). (gr.) Presumptions to support the judgment. Every intendment is to be made which the evidencte will permit to sustain the judgment (Hoy t v. Hoj-t, 8 Bosw. .511). Thus it will be presumed, in the absence, of course, of evidence to the contrary, that in the case of several referees,, aU of them met and heard the proofs (Yates V. Eussell, 17 Johns. 462), that the referee con- sidered ah the competent testimony in deciding the case (Warner v. Warren, 46 N. Y. 228 ; Lewis v. Grieder, 49 Barb. 606 ; Matthews v. Coe, 56 Barb. 430), and that he has found all the facts sustained by the evidence (Kemplev . Darrow, 39 Superior [J. & S.] 447) ; that the findings of fact are in harmony with the conclusions of law upon all questions where the evidence is capable of that construction (Id.). If the referee's findings of fact are ambiguous, such construction should be adopted, in furtherance of justice, as will sustain the judgment, rather than one which will lead to a reversal (Hill v. Grant, 46 N. Y. 496) ; and the same principle is applicable to doubtful con- clusions of law (Warner v. Warren, 46 N. Y. 22S). A party cannot attack, as erroneous, a finding of fact which is clearly in his own favor (Heim v. Link, 52 N. Y. Superior [J. & S.] 547). A referee's finding of fact, made upon a trial in a state court, is deemed conclusive upon the appellate court, on an appeal to the Federal Supreme Oourt (Melendy v. Rice, 15 Alb. L. J. 267). APPEAL FROM JUDGMENT. 143 Where it is desired to review questions of fact, but the evidence taken on the trial before the referee is not spread upon the record before the appellate court, every presumption is in favor of the referee's report, and the court will presume that the referee found such facts as are necessary to support the judgment (Tryon v. Baker, 7 Lans. 511 ; Talcott v. Smith, 20 Week. Dig. 562) ; that there was no evidence from which any other facts could have been found (Stoddard v. Whiting, 46 N. Y. 637) ; that the evidence was suf&cient to uphold the facts found (Spence v. Chambers, 39 Hun, 193 ; Tomlinson v. Mayor, &c. of N. Y., 44 N. Y. 601 ; Porter v. Smith, 7 ]Sr. Y. Civ. Pro. 195 ; Frost v. Smith, 7 Bosw. 108 ; Tryon v. Baker, 7 Lans. 511 ; Phillip v. Gallant, 2 N. Y. 256). (/i.) Power of the appellate court to render appropri- ate judgment. § 1317, Code Civ. Pro.— Upon an appeal from a judgment or an order, the court, or the general term to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each interlocutory judg- ment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties ; and it may, if necessary or proper, grant a new trial or hearing. A judgment, affirming wholly or partly a judgment, from which an appeal has been taken, shall not, expressly and in terms, award to the respondent a sum of money, or other relief, which was awarded to him by the judgment so affirmed. § 2. Appeal to the court of appeals. — (a). The statute. § 1338, Code Civ. Pro. — Upon an appeal to the court of appeals, from a judgment reversing a judgment entered upon a referee's report, or a decision of the court, upon a trial without a jury ; or from an order granting a new trial, upon such reversal ; it must be presumed that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the 144 APPEAL FROM JUDGMENT. contrary clearly appears in the body of the judgment or order appealed from. In tha,t case, the court of .appeals must review the determination of the general term of the court below, upon the questions of fact, as well as the questions of law. The design of the statute has been interpreted to be. to relieve the court of appeals fi'om an examination of the facts except in the case above mentioned or where error is predicated of a finding of fact, because made without any evidence to support it. (6.) Appeals from reversals. Where the judgment of reversal by the general term states that the reversal was upon the facts, or upon the facts and the law, the court of appeals occupies the position of the general term, and the entire case is before it (Godfrey v. Moser, 66 N. Y. 250 ; Smith v. Mtna. Life Ins. Co., 49 Isi. Y. 211 ; aff'g5Lans. 545 ; Fallout;. Lawler, 102 N. Y. 22S ; Peterson v. Eawson, 34 N. Y. 370 ; East Elver National Bank v. Gove, 57 N. Y. 597 ; Crane v. Baudouine, 55 N. Y. 256) ; and this though the order of reversal does not specify the particular errors of fact (Hubbell V. Meigs, 50 N. Y. 480). In such a case, if it clearly appears that the findings of fact are against evidence, the judgment entered on the report will be reversed (Bigler v. Barnes, 56 N. Y. 654) ; but not where the court of appeals might merely have come to a different conclusion on the evidence (Crane v. Baudouine, 55 N. Y. 256). Where the order of reversal appealed from does not state that the reversal was made for errors of fact, it will be assumed, on appeal to the court of appeals, that the reversal was for errors of law (Ward V. Craig, 87 N. Y. 550 ; Davis v. Leopold, Id. 620 ; Baldwin v. VanDeusen, 37 N. Y. 487 ; Van Blar- com V. Broadway Bank, 5 Trans. App. 132 ; Phelps v. Vischer, 50 N. Y. 69). It is sometimes broadly stated that where the reversal is for errors of law, the court of appeals cannot review the facts, but this must be qualified to the extent that the court of appeals may examine the findings of fact to see whether they are APPEAL PROM JUDGMENT. 145 sustained by any evidence, since a finding of fact, with- out any evidence to support, is error of law (Taylor v. Guest, 58 N. Y. 262 ; Thornton v. Autenreith, 55 N. Y. 659 ; Nicholls v. Wentworth, 100 N.- Y. 455 ; Kane v. Cortesy, 100 N. Y. 132 ; Piatt v. Piatt, 58 N. Y. 646). Where the reversal is made by the general term on questions of law, the errors must appear upon the face of the case, otherwise the order of the general term will be reversed and the judgment entered upon the referee's report affirmed (Foster v. Persch, 68 N. Y. 400 ; Smith V. Pettee, 70 N. Y. 13 ; rev'g T Hun, 334). (c.) Appeals from affirmances. — Certain decisions of the court of appeals read by themselves give the im- pression that on appeals from affirmances by the gen- eral term of judgments entered on the reports of ref- erees, the court of appeals is absolutely precluded from reviewing the facts (see ColweU v. Lawrence, 38 N. Y. 71; Mills V. Thursby, 12 How. Pr. 417; Shij^ley v. Angle, 37 N. Y. 626 ; Matter of Eoss, 87 N. Y. 514 ; Waring v. Waring, 100 N. Y. 570). This, however, is not strictly true. The court of appeals in such cases may review the facts, but it does so for one specific purpose onjy, and that is to ascertain whether the find- ings of fact complained of were supported by any evi- dence (Derham v. Lee, 87 N. Y. 599 ; aff'g 47 N. Y. Superior (J. & S.) 174 ; 60 How. Pr. 334 ; Putnam v. Hubbell, 42 JST. Y. 106 ; Potter v. Carpenter, 71 N. Y. 74 ; Sickles v. Flanagan, 79 N. Y. 224 ; Eeynolds v. Robinson, 82 N. Y. 103* ; StilweU v. Mutual Life Ins. * Additional authorities sustaining the proposition stated: Glacius i>. Black, 50 N. Y. 145 ; Lobdell v. Lobdell, 36 N. T. 327 ; s. c, 4 Abb. Pi-. (N. S.) 56; 38 How. Pr. 347; Holmes ». Wood, 13 Rep. 533 ; Finch V. Parker, 49 N. Y. 1 ; McDanolds v. Titus, 57 N. Y. 655 ; Grii- ham V. Selover, 46 How. Pr. 107 ; Perkins s. Hill, 56 N. Y. 87 ; Parker «. Baxter, 86 N. Y. 586 ; aff'g 19 Hun, 410; Stevens v. Mayor, etc. of N. Y., 84 N. Y. 296 ; Rice v. Isham, 4 Abb. Ot. App. Dec. 37 ; "Woodhull V. Rosenthal, 61 N. Y. 382 ; Vilmar v. Schall, Id. 564; Mat- ter of Valentine, 100 N. Y. 607 ; Van Gelder v. Van Gelder, 77 N. Y. 446 ; Gatlin v. Martin, 69 N. Y. 393 ; Cook v. Whipple, 55 N. Y. 150 ; Woodruff V. Valentine, 57 N. Y. 663). 10 146 APPEAL FROM JtTDGMENT. Co., 72 N. Y. 385). If any evidence sustaining the referee's findings of fact is found, in the case, no mat- ter how slight, the findings of fact will be conclusive on the court of appeals (Burgess v. Simonson, 45 N. Y. 225). It is only in very clear cases where there is a total failure of proof that the court of appeals exercises the power of reversing on the facts on an affirmance (Metcalf V. Mattison, 32 N. Y. 464), but if there is no competent 'evidence to sustain the conclusions of fact, or if the undisputed evidence establishes the contrary, thai questions of law are raised and the court of ap- peals, where proper exceptions have been taken, may reverse (FeUows v. Northrup, 39 N. Y. IIT ; Matthews V. Coe, 49 N. Y. 57; Barker v. White, 54 N. Y. 204 ; Wheeler v. Young, 12 Week. Dig. 482). Wheie the possible questions of law are inextricably involved in, and dependent upon the conclusions of fact fonpd upon conflicting evidence by the referee, the judgment of the general term sustaining his finding will be upheld on an appeal to the court of appeals (Bridge v. Penniman, 8 N. Y. State Eep. 187). § 3. Appeal to the general term of the supreme court, or of a superior city court, (a) The statute. § 1346, Code Civ. Pro. — An appeal may be taken to the general term of the supreme court, or of a superior city coui^t, from a final judgment rendered in the same court, as follows : 1. Where the judgment was rendered upon a trial by a referee, or by the court without a jury, the appeal may be taken upon questions of law, or upon the facts, or upon both. 2. Where the judgment was rendered upon the ver- dict of a jury, the appeal may be taken upon questions of law. (&.) Review of the facts. — The general term is the appropriate tribunal to review all the facts upon which the referee passed. The entire case is before the court {Shepherd v. Hill, 6 Lans. 387 ; Lefleru. Field, 50 Barb. APPEAL FROM JUDGMENT. Ii7 407 ; Mead v. Smith, 28 Hun, 639 ; Grocer's Bank v. Penfield, 7 Hun, 279 ; Manley v. Ins. Co., 1 Lans. 20). (c.) Conclusiveness of referee's findings of facts. The rule is sometimes stated that the referee's findings of fact made upon conflicting evidence are conclusive (Monell V. Marshall, 25 How. Pr. 425), upon the general term, or that they are conclusive when there is any -evidence to support them (Clark v. Donaldson, 49 How. Pr. 63). Neither of these propositions is exact as applied to the general term. That court, where a review of the fact is proper at aU, must take the responsibility of examining the evidence and determining the facts for itself (Godfrey v. Moser, 66 N. Y. 250). {d.) Principles applied by the general term in review- ing the facts. In the sense of preventing a review of the facts, where such a review would be proper at all, no finding of facts by a referee is conclusive upon the general term. As a matter of fact and practice that court usually accepts the findings of fact made upon conflicting testimony, where there is any evidence sus- taining the -findings, and though the decisions some- times speak of the findings in such cases as conclusive, they must .be understood in this sense (Moran v. Mc- Larty, 75 N. Y. 25 ; aff'g 11 Hun, 66). The circumstance that the referee sees and hears the witnesses testify is entitled to the greatest weight, and as a general rule his findings of fact on conflicting evi- dence will, for this reason, be adopted by the general term, where there is any evidence sustaining them {Pearson v. Fisk, 2 Hilt. 146 ; Wright v. Saunders, 65 Barb. 214). To reject his flndings of fact, it is not enough that upon the evidence as it appears in the printed case the appellate court might reasonably have come to a dif- ferent conclusion (Morris v. Second Ave. E. Co., 8 Bosw. 679 ; Westerlo v. De Witt, 36 N. Y. 340 ; East Eiver Nat. Bk. v. Gove, 57 N. Y. 597 ; Mooney v. Loughlin, 8 N. Y. State Eep. 179). But if the findings 148 APPEAL FROM JUDGMENT. are against the clear and decided preponderance or weight of evidence (Strittmacher v. Sahna Company, 34 How. Pr. T4 ; Gardner v. Gardner, 19 Week. Dig. 249 ; Smith v. Mtna, Life Ins. Co., 49 N. Y. 211 ; aff'g^ 5 Lans. 545 ; Patent Elastic Felt Co. v. Spencer, 10 Week. Dig. 317 ; Butler v. Truslow, 55 Barb. 293) or unsupported by any evidence (Townsend v. Peyser, 45 How. Pr. 211 ; Warner v. GiUette, 15 Week. Dig. 153;. Harrison v. Bockee, 66 Barb. 549) or they indicate, such bias, partiality or palpable mistake (Brooks v. Christopher, 5 Duer. 216) as to convince the court that injustice was done, a reversal will be ordered. But for the court to proceed to this extreme, the case must be clear and the referee's error palpable (Eoosa v. Smith, 17 Hun, 138 ; Thompson v. Wood, 1 Hilt. 93; Hoogland v. Wright, 7 Bosw. 394; Kiersted v. West, 13 Week. Dig. 106 ; Butler v. Truslow, 55 Barb. 293 ; Howell V. Biddlecom, 62 Barb. 131 ; EusseU v. Bur- ton, 66 Barb. 539 ; Warner v. Warren, 46 N. T. 228; Bishop V. Stebbins, 41 Hun, 243 ; Scattergood v. Wood, 14 Hun, 269 ; aff'd 79 N. T. 263 ; American Corruga- ted Iron Co. V. Eisner, 39 Superior [J. & S.] 200 ; Eoe V. Boyle, 7 Week. Dig. 566). A claim that a referee has allowed excessive dam- ages is addressed to the discretion of the general term. Its decision on this point is not reviewable in the court of appeals (Metcaif v. Baker, 57 N. Y. 662). (e.) Effect of reversal of judgment on the order of reference. The reversal of a judgment entered upon a referee's report in references on consent, does not of itself vacate the order of reference (Carter v. Wallace, 3 How. Pr. [N. S.] 350 ; Hasten v. Budington, 18 Hun, 105 ; Catlin v. Adirondack Co., 81 N. Y. 379 ; s. c, 19 Hun, 389 ; Kiersted v. Orange, &c. Eailroad Co., 54 How. Pr. 29 ; Shuart v. Taylor, 7 How. Pr. 251). The order of reference stands unless the order of reversal directs the contrary, or the order of reference is vacated on motion made for that purpose (Catlin v. Adirondack Co., 81 N. Y. 379 ; s. c, 19 Hun, 389). As to the APPEAL FROM JUDGMENT. 149 effect of I'eversals of judgment iu compulsory refer- 'Cnces, it was held in Devlin v. Mayor, &c. of N. Y., 64 How. Pr. 11 ; s. c, 6 Daly, 486), that the rever- sal of the judgment, itself vacated the order of refer- ence. It is difl&cult to see why there should in principle be any difference between the two classes of ■cases in this respect, and in practice the distinction is not adhered to. As indicated by Daly, 0. J., in the case last cited, the compulsory order of reference being .an adjudication that the action is in its nature refer- able, the practice on a reversal of the judgment entered upon the report of the referee, unless the order of reference is in terms affected, is simply to let the order •of reference stand, and move for the appointment of a referee. As to whether the new trial, where one is -ordered, may take place before the same referee, or must be brought on before a new referee, see section 3, ■page 39, 150 CONTROL OVER THE REFERENCE BESIDES APPEAL^ CHAPTER XXI. COHTBOL OVER THE EeFEBENCE OtHER THAN EeVTETV BY Appeal. § 1. Application to the Court before Trial. § 2. Application to the Court during the Trial. § 3. Application to the Court after Report Rendered. (a.) Sending Report back to Referee for correction. (5.) Motion for a New Trial. (c.) Motion to Set Aside the Report and Subsequent Proceedings for Irregularities in Practice. (d.) Motion to Set Aside the Report and Subsequent Pro- ceedings for Bias, Partiality, Corruption, etc. Forms on Motion to Set Aside Referee's Report, and to- Vacate the Judgment Entered thereon for Referee's , Improprieties. Form of Affidavit. Form of Order to Show Cause. Form of Order Setting Aside Report and Vacating Judg- ment. § !• Application to the court before trial. — While a- referee to whom the issues are referred to hear and. determine, exercises with respect to the determination, of those issues, the power of a court, whose decis- ions on the merits can only be reviewed by appeal, yet the court appointing the refei-ee is not divested of con- trol, before the hearing has been commenced, to remedy a manifestly improper selection, or to compel a ref eree- to begin the hearing. If it can be made to appear that there is real danger that the referee wUl enter upon the- trial with a biased mind, he may be removed on motion (Conley v. Petrie, 60 How. Pr. 299 ; Clark v. Clark, T Eobt. 62 ; BiUings v. Vanderbrek, 15 How. Pr. 295).. Where it is important that the referee should com- CONTROL OVER THE REFERENCE BESIDES APPEAL. 151 mence to exercise his functions, but he will not, or cannot do so, the court may on motion vacate the order of reference (Parkhurst v. Berdell, 87 N. Y. 145 ; Forrest 'v. Forrest, 3 Bosw. 650). § 2. Application to the court during the trial. — During the trial before the referee, applications to the court to interfere and control the referee's action with reference to matters before him are viewed with great disfavor. Certain early cases support the view that in regard to improper amendments allowed during the trial, the referee's rulings may be reviewed by a motion at spe- cial term as well as by appeal on the ground that a motion is a cheaper and more expeditious remedy (Bil- lings V. Baker, 6 Abb. Pr. 213 ; Ford v. Ford, 53 Barb. 526; Chittenango Cotton Company v. Stewart, 67 Barb. 423 ; Union Bank v. Mott 18 How. Pr. 506). But the better and more recent view now prevails that as an adequate remedy has been provided by appeal to review all the erroneous rulings made during the trial by a referee, a dissatisfied party should be left to that rem- edy and not trouble the courts with applications for a summary interference with the rulings of what, for the time being, is an independent tribunal (Eobinson V. Robinson, 4 Law. Bui. 70; Marie u. Grarrison, 1 How. Pr. [N. S.J 32; 7 Civ. Pro. 40; Oregon Steamship Co. v. Otis, 59 How. Pr. 254; Knapp v. Fowler, 26 Hun, 200). This does not, however, prevent the court from entertaining an application by an aggrieved party to interfere where during the trial, a state of facts show- ing bias on the part of a referee rendering him incapa- ble of properly trying the case, is brought before it (Marie v. Garrison, 1 How. Pr. [N. S.J 32 ; 7 Civ. Pro. 40), or it is submitted, showing fraud on the referee's part or collusion with the attorney for the other side. An order denjdng a motion to set aside an order of reference made during the trial, upon the ground of professional and confidential relations between the referee and one of the parties, is not reviewable in the 152 CONTROL OVER THE REFERENCE BESIDES APPEAL. court of appeals (Baird v. Mayor, &c. of New York, 74 N. Y. 382.) [As to the effect of the death of the referee during the trial, see § 9, pa^e 99. J § 3. Application to the court after report rendered. — (a.) Sending report hack to referee for correction. The sending back of reports to referees to supply alleged omissions is not encouraged. It may, however, be done to supply technical and clerical omissions (First National Bank v. Levy, 41 Hun, 461), to compel a referee to state findings of fact and conclusions of law already made separately (see § 4, page 104). It is no longer necessary, nor strictly speaking proper, to recommit a report to a referee for the purpose of having him make additional findings (see § 2, page 87). (&.) Motion for a new trial. The practice of mov- ing for a new trial for errors committed during the trial, or that the verdict is against the weight of evi- dence, prevailing in jury trials, has no application to ref- erences to hear and determine the issues (see §§ 1001, 1002, 1004, 1232, Code Civ. Pro.) In this class of references the merits of the case can only be reviewed by an appeal from the judgment (Malcolm v. Foster, 5 Week. Dig. 310; Kiersted v. Orange, &c. Railroad Co., 54 How. Pr. 29; Donohue v. Champlin, 1 Code E. [N. S.J 138; Dana V. Howe, 13 N. Y. 306 ; Enos v. Thomas, 5 How. Pr. 361; Bchweizer v. Raymond, 6 Abb. N. 0. 378). But where the report rendered upon the trial of an issue of fact directs an interlocutory judgment to be entered, and further proceedings must be taken before final judgment, provision is made for a motion upon excep- tions for a new trial at the general term (Code Civ. Pro. § 1001). Motions may be made, however, at special term, for new trials on the ground of surprise, irregularity or newly discovered evidence, as in jury trials and are governed by the same rules (see Adams V. Bush, 2 Abb. Pr. [N. S.J 104 ; Woolf v. Jacobs, 45 How. Pr. 403 ; Lawrence v. Ely, 38 N. Y. 42 ; Quinn V. Lloyd, 1 Sweeny, 253). (c.) Motion to set aside the report and subsequent CONTROL OVER THE REFERENCE BESIDES APPEAL.. 153 proceedings for irregularities in practice. For irreg- ularities in practice which do not appear on the face of the record, a motion to set aside the report and the subsequent proceedings, such as judgment, etc., if any have been had, is the appropriate remedv (Barton v. Herman, 8 Abb. Pr. [N. S.J 399 ; 3 Daly, 3*20 ; Fullmer V. Fullmer, 6 "Week. Dig. 22, 42). Applications for relief of this character are addressed ±0 the discretion of the special term, and its action, while reviewable by the general term (Gray v. Fisk, 53 N. Y. 630), is not reviewable in the court of appeals (Williams v. Montgomery, 60 N. Y. 648 ; Baird v. Mayor, &c. of New York, 74 N. Y. 382 ; Leonard v. Mulry, 93 N. Y. 392). A party intending to take advantage of an irregular- ity must move in the matter at the earliest moment (Patterson v. Graves, 11 How. Pr. 91 ; Catlin v. Cathn, 4 Supm. Ct. [T. & 0.] 664 ; Johnson v. Swart, 11 Paige 385 ; Durant v. O'Brien, 2 How. Pr. [N. S.J 313 ; Mac. pherson v. Konner, 40 N. Y. Superior [J. & S.J 448 ; ■Carroll v. Lufkins, 29 Hun, 17). A motion to s^t aside the report is not the proper remedy where the referee refuses to deliver up exhibits which have been offered in evidence on the trial before him (Davis v. Eichards, 3 Month. Law. Bull. 94). [For the effect of specific irregularities, consult the ■chapters relating to the particular stage of the trial ■at which the irregularity occurred.] • (d.) Motion to set aside the report and subsequent proceedings for bias, partiality, corruption, etc. A motion to set aside the report and the subsequent pro- ceedings, if any have been had, is also the appropriate remedy in this class of cases. The rule that the party who desires to take advantage of an irregularity must move at the earliest opportunity, applies here, but with one qualification. If acts of misconduct on the part of a referee are known to a party, and are com- plete before the case is submitted to the referee, and ihe party does not at once move, the party wiU be 15i CONTROL OVER THE REFERENCE BESIDES APPEAL. barred from relief, but if the misconduct is not com- plete until the time for decision, then the rule is inap- pUcable (Burrows v. Dickinson, 35 Hun, 492). The ser- vice of a notice of appeal from the judgment, by the party moving for an order to vacate, on the ground of the referee's misconduct, has been held, not to cut off the party's right to make the motion (Greenwood v. Marvin, 29 Hun, 99). Eeports of referees and subse- quent proceedings have been set aside for acts from which a presumption of bias might be inferred (Legn- ard V. Mulry,' 93 N. Y. 392 ; Stebbins v. Brown, 65 Barb. 272 ; Harlem Bank v. Todd, 4 Week. Dig. 64; Livermore v. Bainbridge, 44 How. Pr. 357 ; aff'd 14 Abb. Pr. [N. S.J 237; 47 How. Pr. 350; appeal dismissed 47 How. Pr. 354 ; 15 Abb. Pr. [N. S.] 436; 56 N. T. 72 ; Greenwood v. Marvin, 29 Hun, 99) ; for a vacillating course of conduct giving rise to suspicion (Eoosa v. Saugerties, &c. Eoad Co., 12 How. Pr. 297) ; for enter- taining ex parte discussions and arguments (Dorlon v. Lewis, 9 How. Pr. 1). [For a particular statement of the rules relating to this subject, with the necessary qualifications, see chap- ters V. and XV. 1 Personal disquahfications of the referees, showing them to be improper persons to try the case may also be taken advantage of by motion to set aside the report and subsequent proceedings if any have been had (Countryman v. Norton, 21 Hun, 17 ; Carroll v. Lufkins, 29 Hun, 17). [For a particular statement of the rules relating ta this subject with the necessary qualifications, see chap- ter F.] CONTROL OVER THE REFERENCE BESIDES APPEAl'. 155- Forms on motion to set aside referee's report and to vacate the judgment entered thereon for referee's improprieties. Form of affldarit Title of the case. City dud County of New York, ss. : A. B., being duly sworn, deposes and says that he is the- defendant in the above entitled action. I. That the issues in this action were referred to C. D., by order of this court dated the day of , to hear and' determine, and that said referee rendered a report in plain- tiff's favor, dated the day of II. That judgment was entered npori said report on the day of , in the office of the clerk of couuty,- \or otherwise if judgment has not yet ieen enter ed-l III. Deponent further says, that he is informed, and believes, that before rendering the said report, or delivering" the same, the said referee made an agreement with plaintiff and his attorney herein, E. F., Esq., by which the said referee required, and the said plaintiff and his attorney agreed that he, the said referee, should have from the plaintiff, and that said plaintiff would execute and delivei' to the said referee an assignment to the said referee of an interest in the alleged claim of the plaintiff herein, and in any judgment that should be entered upon such report, and by which the said referee should be entitled to have the proceeds from such claim or judgment to the amount of his fees. IV. Deponent respectfully asks for an order to show cause why the said report should not be set aside and th& judgment entered as aforesaid vacated. V. Deponent asks that said order to show cause be returnable in less than eight days, for the reason that it is important ; that this motion be heard before the case on appeal hei-ein is settled. That no previous application for this order has been made. Sworn to before me this ) . •. , day of j ■ ■ 3.56 CONTROL OVEB THE REFERENCE BESIDES APPEAI Form of order to show cause. Title of the case. On the annexed aflBdavit of A. B., sworn to the day of , let the plaintifE above named, or his attorney, sliow cause before me, or one of the justices of this court, at a special term thereof, to be held at , in the court house, in the city of , on the day of , at o'clock in the forenoon of that day, or as soon as coun- sel can be heard, why the report of 0. D., the referee herein, dated the day of , should not be set aside, and why the judgment entered in the oflBce of the clerk of the county of , the day of , upon said report, be not vacated for the facts alleged in the annexed affidavit, and why such other and further relief to the defendant be not granted as may be just. Service of a copy of this order, on or before the day ■of to be sufficient. Date. G. H., J. Form of order setting aside report and vacating judgment. At a special term, etc. Present, Hon. Justice, Title of the case. On reading and filing the order to show cause granted lierein by the Hon. G. H., one of the justices of this court, dated the day of , why the report of C. D., Esq., the referee herein should not be set aside, etc., and upon reading and filing {specify the papers used and pro- ceedings had], now, after hearing K. L., attorney for the defendant, and M. N., attorney for the plaintiff, [and 0. P., Mtomey for said referee] in opposition thereto, ordered, that the said motion to set aside the report of the said 0. D. referee, as aforesaid, be and the same hereby is granted, and it is further ordered, that the said report dated the CONTROL, OVER THE REFERENCE BESIDES APPEAL. 157 day of , and the judgment entered thereon the day of , in favor of the above named plaintiff, in the- office of the clerk of the county of , for the sum of dollars, be, and they and each of them are hereby in all respects vacated and set aside, and a new trial is- granted herein. 158 THE EEFEREE'S FEES. CHAPTEE XXn. The Fees op Referees in Eepeeenoes to Heak asd Determine. § 1. The Statutory Compensation. § 2. Eeferoe Dissatisfied with the Statutory Rate. § 3. Compelling the Payment of Fees in advance. § 4. Agreement for a Greater Compensation. (a) When to be Made. (b) To be in Writing. (c) A Definite Rate Must be Fixed. Forms of Stipulation fixing Eeferee's Fees. § 6. Control by the Court over the Agreement. § 6. For what Services the Referee can Charge. § 7.. Disputing the Eeferee's Charges. Form of AflSdavit aa to Time spent by Referee. § 8. What Constitutes a Day. § 9. Presumption on Appeal. § 10. How Fees in Different Actions to be Apportioned. § 11. Liability for Referee's Fees. § 1. The statutory compensation.^The fees of the referee are regulated by § 8296, Code Civ. Pro., under ■which he "is entitled to six dollars for each day spent in the business of the reference, unless, at or before the commencement of the trial or hearing, a different rate of compensation is fixed, by the consent of the parties, other than those in default for failure to appear or plead, manifested by an entry in the minutes of the referee, or otherwise in writing, or a smaller compen- sation is fixed by the court in the order appointing him." Where several referees sit, each is entitled to full compensation. § 2. Referee dissatisfied with statutory rate. — If the ref- eree is dissatisfied with the compensation fixed by the THE EEFEEEE'S FEES. 159 statute and the parties, or their attorneys •will not agree upon a higher pay, his duty is to decline the reference unconditionally. A mental reservation that his services are in reahty worth more, and that before the dehvery of his report he will expect a larger fee, wUl, if openly expressed, be a sufficient ground foi' his removal (Devlin v. Mayor, &c. of New York, 7 Daly, 466 ; rev'g. 54 How. Pr. 64). § 3. Compelling the payment of fees in advance. — A ref- eree is not entitled to the payment of fees in advance before proceeding with the reference (Ellsworth v. Brown, 16 Hun, 1 ; s. C, 56 How. Pr. 237). And after the reference has proceeded, he is, not entitled to fees until the report is actually made (Clapp v. Clapp, 38 Hun, 540); and, where it is required to be filed, not until then (Matter of Kraus, 4 Dem. 217). In a peculiar and unusual case, the court might in its discretion order a sum of money to be deposited to secure the referee's fees (Ellsworth v. Brown, 16 Hun, 1 ; s. c, 56 How. Pr. 237). K the referee declines to go ou with the reference unless his fees are paid in advance, he may be removed by the court. § 4. Agreement for a greater compensation. — (a). Wlien to he made. The arrangement giving the referee a greater fee than is allowed by the statute should be made before the referee commences the trial (Chase V. James, 16 Hun, 14 ; People v. Continental Life Ir s. Co., 15 Week. Dig 569). The report of a referee who starts negotiations and attempts to procure stipulations giving him a greater fee, after the case has been sub- mitted, may be set aside (Greenwood v. Marvin, 29 Hun, 99). The reasons why the contract should be made at this stage of the case, are thus well stated by Bockes, J., in Chase v. James, above cited: "When made during the progress of the trial, they are of doubtful propriety. After the referee has commenced to act, if 160 THE referee's FEES. either party proposes that the referee shall have a greater sum than the statute prescribes, the other can- not refuse. He is justly afraid that such refusal may prejudice the referee against him. On the other hand a party sometimes thinks it is a wise measm-e to be first to propose, in the referee's presence, that his compensation should be some' Uberal sum. These motives have tended to make attorneys agree on lai'ge compensation, each hoping that the burden vp-ould fall on the opposing party. If then more than the statutory fees are to be allowed, a written agree- ment fixing the exact fees agreed upon should be made and signed before the referee commences to act. If he is not satisfied with the statutory rate, or the rate agreed upon, he can decUne to serve." (&). To he in writing. The statute prevaHuig before the Code of Civil Procedure, viz. , Code of Procedure, § 313, allowed the referee three dollars for each day spent in the business of the reference, but provided that the parties might in writing agree upon any other rate of compensation. It did not, hke the section of the Code of Civil Procedure (§ 3296) regulating the sub- ject at present, provide that the agreement might be manifested by an entry in the minutes of the referee. In Thurman v. Fiske, 30 How. Pr. 397, it was held that an oral agreement to give a higher compensation was sufficient, but this decision was not followed. The statute was interpreted to require an agreement in writing or an entry in the minutes of the referee (Townsend v. Peyser, 14 Abb. Pr. [N. S.J 324 ; Chase v. James, 16 Hun, 14 ; Philbin v. Patrick, 22 How. Pr. 1). In First National Bank v. Tomajo, 77 N. Y. 476, the court went further, holding that there must be a distinct written agreement and that an entry in the minutes would not suffice. So much of this decision as holds that an entry in the minutes of the referee is not equivalent to a written agreement, is of course in- applicable under § 3296, Code Civ. Pro., at present pre- vailing. Prudence, however, would suggest that a THE referee's FEES. 161 distinct written agreement signed by the parties theai- selves or their attorneys be made in each case, where a higher compensation than is allowed by statute is to be paid. (c). A definite rate must be fixed. An agreement that the referee may charge " the fair value of his services " would not entitle him to anything in excess of the statutory fee (Chase v. James, 16 Hun, 14). And the same may be said of an understanding leaving it to the i-eferee to determine his own compen- sation and to make it what he deems reasonable (First National Bank v. Tomajo, 17 N, Y. 476). Forms of stipnlations fixing; referee's fees. Title of the case. It is hereby stipulated and agreed that the compensation of the referee in tliis case be fixed at dollars per day. Date. A. B., plaintiff's attorney, C. D., defendant's attorney. The above stipulation is deemed sufficient for all purposes, but if a more specific agreement is desired the following may be used: Title of the case. It is hereby stipulated and agreed that the referee's fees- in this action be fixed at dollars, for every hearing occu- pying hours or less, and at dollars for [every hear- ing occupying hours or over, and at dollars for] each adjournment requested by either of the parties to this action, and at dollars for each day spent in preparing and makiiioj his decision after the case shall have been finally submitted. Date. A. B., plaintiff's attorney. C. D., defendant's attorney. § 5. Control by the court over the agreement. — It is well settled that an attorney can bind his client by a stipu- 11 162 THE REFEEEE'S FEES. lation to pay an increased referee's fee. Such a stipu- lation where it has in apparent good faith been stcted upon by the parties and the referee, and no persons other than the parties will be affected thereby, cannot be set aside by the courts, because it allows, what may seem to the court an unusually large, or improperly large sum (Mark v. City of Buffalo, 87 N. T. 184). But it is questionable whether all htigants can enter into such a stipulation. Thus it has been intimated to be doubtful whether a receiver can consent to an increase of the fees of a referee beyond the statutory rate, and ' if he can, whether he must not obtain the permission of the court to do so (People v. Continental Life Ins. Co., 15 Week. Dig. 569); and a stipulation between the counsel of an assignee for the benefit of creditors and the several counsel for creditors, allowing a referee, appointed to take and state the accounts of an assignee, a higher rate of compensation than was allowed by the statute, was held not binding on the court, and the fees were reduced accordingly (Matter of Currier, 8 Daly, 119). § 6. For what services the referee can charge. — For time spent in the hearing of the reference the i-eferee is, of course, entitled to compensatioii. And he is entitled to pay for time spent in the investigation and consider- ation of the case after its submission, properly and reasonably necessary for the making of his report (Herschell v. Eogers, 2 Month. L. Bull. 15; Berg v. Eottek, N. T. Daily Eeg. Dec. 28, 1883). But he can- not demand a fee for services unless personally ren- dered (Shultz V. Whitney, 9 Abb. Pr. 71). The statu- tory rate allowed, covers all the referee's fees and dis- bursements. Thus he cannot put in a claim for clerk hire, printing, stationery and the Hke (People v. Con- tinental Life Insurance Co., 15 Week. Dig. 569). As to adjournments, the practice is to allow the referee the same compensation for adjournments as for ^.■fctings, when obtained at the request of the parties THE referee's FEES. 163 attending before him ; but when obtained at his own request, or to suit his own convenience, no allowance is made to him. In Mead v. Tuckermau, 105 N. Y. 557, a stipulation was entered into by the attorneys of the respective parties, that the compensation of the referee should be twenty dollars per day, "for every hearing." The referee charged for thirty-nine days on which appoint- ments for a hearing had been made at the request of •counsel, but where no hearings in fact were had, and no meetings or appearances before the referee. The failure to appear on the several days so appointed was due' to the fact that, by arrangement of the "counsel, made prior to the time fixed by the referee, the hear- ings were postponed, of which postponements the referee was notified. Held, that an order allowing compensation for such days was erroneous and the -same was reversed. § Y. Disputing tlie referee's charges. — The referee's fees are taxable as disbursements by the successful party, irrespective of their actual payment before taxation (Clegg V. Aikens, 17 Abb. N. 0. 88), and irrespective of the solvency or insolvency of such party. Where no opposition is made before the taxing officer, it is still his duty to examine all the items presented, and to satisfy himself that they are " correct and legal "(§ 3266, Code Civ. Pro.). In such cases, the presumption that the referee, being an officer of the court, has charged only legal fees is very liberally indulged in. Opposition to the taxing of the referee's fees should he .made by the unsuccessful party if he is dissatisfied therewith, and the decision of the .taxing officer wHl be reviewed by the court on motion for a new taxation, and a new taxation ordered if the party's objections are meritorious (§ 3265, Code Civ. Pro.; Brown v. WindmuUer, 14 Abb. Pr. [N. S.] 359; Shultz v. Whit- aaey, 9 Abb. Pr. 71.) Where the time actually spent by the referee in the 164: THE referee's FEES. business of the reference is disputed, it is incumbent on; the party seeking to tax the referee's fees to show affirmatively the time employed (Watson v. Gardiner, ' 50 N. Y. 671; Shultz v. Whitney, 9 Abb. Pr. 71; Brown. V. Windmuller, 14 Abb. Pr. [N. S.] 359 ; Rothschild v. Weruer, 4 Month. L. Bull. 28 ; Byrne v. Groot, 5 Id. 56 ; Mc Arthur v. Groot, Id.]. The evidence to be presented to the taxing ofiScer in support of the amount claimed is usually an affidavit ;. though he is not precluded from accepting other com- petent evidence. The affidavit should, if procurable, be made by the referee ; but, if for any reason it can- not be obtained from him, the attorney for one of the parties may make it. Form of affldarit as totlme spent by referee. Title of the case. City and County of New York, ss. : I, A. B., being duly sworn, say, that I was referee in the above entitled action, and that I spent days in all, in the business of the said reference. That of said days, were employed in the hearing of the evidence, in hear- ing tlie arguments of connsel, in the consideration of the case after the argument was closed, days in the prepara- tion of the report and adjournments were had at the request of the parties attending before me. That an im- mense mass of testimony was taken, chiefly of an expert character, and the questions decided were complicated and difficult. That the days above set forth were actually spent, and no more time was spent than necessary. I kept daily minutes of said trial, and entered the num- ber of days devoted to it, in my office register at the close of each meeting. Sworn to before me this ) . ^ day of \ ^^^ If there has been a stipulation respecting a higher rate of compensation it should be annexed to the affi- THE referee's FEES. 165 ■davit and brought to the notice of the clerk on the taxation. §8. What constitutes a "day." — The practice is to re- gard each honest, distinct sitting as a day. Just how long it shall be has not been decided. But good faith nnust characterize the referee's action in this respect, ■or a ground for reducing his fees will be presented. Thus, in Brown v. Windmuller, 14 Abb. Pr. (N. S.) 350, the parties to a reference agreed that the referee should receive a specified sum per day. Held, that a reading of about ten minutes from the brief of one of "the attorneys, interrupted by the referee himself, was not a sitting for which the referee could charge a day's compensation. § 9. Presumption on appeal. — Where the number of days spent does not, on appeal, appear in the case, the allowance of referee's fees by the court below will be presumed correct (Kearney v. McKeon, 85 N. Y. 136). § 10. How fees in different actions to be apportioned. — Where two actions between the same parties and in- volving similar issues are referred to the same referee, advances made to him as fees, should be credited severally to the respective actions, and not lumped together as one sum (Colton v. Simmons, li Hun, T5). Where two actions are tried together before a ref- eree, and evidence apphcable to each is taken at the same sitting, before the same referee, because the facts in one suit are apphcable to some extent in the other ; Taut one full fee should be charged by the referee for each sitting, and of that fee, one-half should be taxed as a disbursement in each suit (Byrne v. Groot, 5 Month. L. Bull. 56; McArthur v. Groot, Id. J. § 11. Liability for referee's fees. — An attorney is not liable for the fees of a referee (Howell v. Kinney, 1 JIow. Pr. 105; Judson v. Gray, 11 N. Y. 408). The 166 THE EEPEREE'S FEES. referee will have to look to the successful party (Geib V. Topping, 83 N. Y. 46). .See page 116. [As to the effect upon the referee's fees of an election to terminate the reference, see section 14, page 113. As to the effect of improper arrangements respecting his fees made by the referee with either of the parties, consult the chapter on control over the reference other than appeal, commencing at page 150.] THE EEFEKEE's MINUTES AND THE STENOGRAPHER. 167 CHAPTEE XXIII. The Eeperee's Minutes and the Stenographer. § 1. Referee's Minutes are his Own Property. § 2. Stenographer's Fee as a Taxable Disbursement. § 3. Liability for Stenographer's Fees. § 4. Control Over the Stenographer's Notes. § 1. Referee's minutes are his own property. — The origi- nal minutes of the referee, taken by him during the trial, are his own private property over vrhich the court has no control (Horrocks v. Thompson, 27 Hun, 144). § 2. Stenographer's fee as a taxable disbursement. — The stenographer, upon a trial before a referee, does not occupy any official position, but is simply a private in- dividual taking notes for the benefit of the parties (Varnum v. Wheeler, 9 N. Y. Civ. Pro. • 421). In the absence of a stipulation to that effect, his fees cannot be taxed as a necessary disbursement (Nugent v. Keenan, 53 N. T. Superior [J. & S.J 530 ; Colton v. Simmons, 14 Hun, 76 ; Byrne v. Groot, 5 Month. Law Bull. 56 ; McArthur v. Groot, Id. ; Varnum v. Wheeler, 9 N. Y. Civ. Pro. 421). Under an agreement made at the commencement of the reference, that the fees of the stenographer should be borne by the parties in equal proportions, each pay- ing one-half thereof, — Held, that the expense of. an extra copy ordered by the referee, could not be taxed entirely against the unsuccessful party, but that it was covered by the agreement and was equally for the benefit of both litigants (Mark v. City of Buffalo, 87 N. Y. 184). 168 THE referee's minutes and the stenographer. § 3. liability for stenogapher's fees. — The stenographer must, in the absence of an express agreement by the attorney employing him to be responsible for his fees, look to the attorney's client for compensation (Bonynge V. Waterbury, 12 Hun, 534; Bonynge v. Field, M Superior [J. &S.] 581; Sheridan?;. Genet, 12 Hun, 660). In the absence of a special agreement that the success- ful party should pay the stenographer's fees, aU the parties to the action who employ him are liable (Adams V. N. Y., Lake Erie and W. E. E. Co., 20 Abb. N. 0. 180). § 4. Control over the stenographer's notes. — While a sten- ographer is not obliged to part with his notes until his bill has been paid, yet if he does deliver them to the referee, to be examined by the latter, and used as the basis of his report, he cannot limit the effect of such delivery by directing that the notes should not be delivered to either party until his fees are paid. Where the referee is required to file the notes, he would be obliged in such a case to file them, though the stenographer's bill were unpaid (Pope v. Perault, 22 Hun, ^63). A part}'' cannot, by getting control of the original stenographic notes and of a copy fm-nished to the referee, and used by him in the preparation of his report, deprive his adversary, on an offer by the latter to pay his share of the expense, of an oppor- tunity to make a case and to enable the referee to settle it. The court, on such a state of facts, has power to direct the adversary to file the notes (Woodworth v. Seymour, 16 Week. Dig. 43). And even where a judg- ment is paid, and no appeal taken therefrom, the court has, in analogy to the power possessed over official stenographers under §§82, 83, Code Civ. Pro., authority to direct the filing of the notes taken by a stenog- rapher on a trial before a referee, such notes having been paid for out of the judgment (Horrocks v. Thomp- son, 27 Hun, 144). CONTEMPT, , 169 CHAPTER XXIV. CONTEMPT. § 1. Referee himself subject to Contempt Proceedings. § 2. Powers of Referees relative to Contempt Proceedings. § 3. Construction of Statutory Power. § 4. Kinds of Contempt. § 5. Proceedings begun by Attachment. Form of Warrant of Attachment. Form of Order for Commitment. Form of Warrant of Commitment. § 6. Proceedings begun by Order to show Cause. Form of Order to show Cause. Form of Affidavit to obtain Order to show Cause. Form of Order fining Offender. § 7. Default of Accused. § 8. Punishtnent. § 9. Acts construed as Contempts. § 10. Acts held not. Contempts. § 1. Referee himself subject to contempt proceedings. — The referee may himself be the subject of contempt proceedings at the instance of a party whose right or remedy he has wrongfully prejudiced. The language of section 14, subd. 1, of the Code of Civil Procedure is sufficiently broad to include a referee as one who may be punished by the Court, by fine and imprisonment, "for a misbehavior in his office or trust or for a wilful neglect or violation of duty therein." Subd. 1 of above section, including the introduction, is as follows : § 14. A court of record has power to punish, by fine and imprison- ment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special pro- ceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in either of the following cases : lYO CONTEMPT. 1. An attorney, counsellor, clerk, sheriff, coroner, or other person, in any manner duly selected or appointed to perform a judicial or minis- terial service, for a misbehaviour, in his office or trust, or for a wilful neglect or violation of duty therein ; or for disobedience to a lawful mandate of the court, or of a judge thereof, or of an officer authorized to perform the duties of such a judge. § 2. Powers of referees relative to contempt proceedings. — By the provisions of section 1018 of the Code of Civil Procedure a referee upon a trial exercises the same power as the court to preserve order, and punish the violation thereof ; to punish a witness for a contempt of court, for non-attendance, or refusal to be sworn, or to testify. The referee's power, however, is not exclusive. By section 2272 of the Code of CivU Procedure, if the application is made directly to the referee to punish a party or a vntness for contempt, the referee himself may take the responsibility, if requested, of controll- ing the proceeding and punishing the accused, by making the order to show cause, or issuing the war- rant of attachment returnable before himself, or he may throw that responsibility upon the court by mak- ing them returnable before the court. Again, if the party aggrieved prefers, he may apply directly to the court in the first instance (§ 2269, Code Civ. Pro.). Prior to the Code Civ. Pro. under the act of 1857, amending section 272 of the Code of Procedure, it was held that the power of the referee to punish for con- tempt was not exclusive of that of the court {In re Seeley and Jobson, 6 Abb. Pr. 217, n.). § 3. Construction of statutory power. — Statutory pro- visions giving the referee the power to punish for contempt, however, are construed strictly by the courts. The maxim Expressio unius est exclusio alterius is here apphed, and referees for other purposes than the trial of a cause do not have this power to punish. CONTEMPT. 171. Where the contempt proceeding is before the referee- and the order fining the offender upon the return of the order to show cause, and the order directing a com- mitment to issue, upon the return of the warrant of ' attachment, are made 'by the referee himself, and a commitment is issued pursuant to the latter, they should each contain full recitals showing the regularity of all the proceedings. There is otherwise no presumption in favor of their regularity. They should show on their face that the- statute has been strictly observed (People ex rel^ ■ Jones V. Davidson, 35 Hun, 471). § 4. Kinds of contempt.— Criminal contempts are- defined in section . 143 of the Penal Code and section & of the Code of Civil Procedure, and may be punished as prescribed by sections 9, 10, 11, of the Code of Civil Procedure and in addition may be punished as other crimes", though by section 2287 of the Code of Civil Procedure the Criminal Court must take into consider- ation any previous punishment. Contempts punishable civilly are defined in section 14 of the Code of Civil Procedure, and the manner of punishing for such contempts is prescribed in sections 2262-2292 thereof. Three methods are therein indicated of punishing a party guilty of contempt : (a) The first method is pointed out in section 2267, which is as follows : Where the offence is committed in the immediate view and pros-- ence of the court, or of the judge or referee, upon a trial or hearing, it may be punished summarily. For that purpose, an order must b& made by the court, judge, or referee, stating the facts which constifute the offence, and bring the case within the provisions of this section, and plainly and specifically prescribing the punishment to be inflicted therefor. (&) If the method indicated in that section is either inappropriate or inexpedient, the procedure , pointed; a 73 CO^TEMPT. •out in section 2269 must be followed, and section 2272 of the Code of Civil Procedure makes that apphcable to trials before referees. These sections are as fol- lows : § 2269. The court or judge, authorized to punish for the oftence may, in its or his discretion, where the case is one of those specified in cither of the last two sections, and, in every other case, must, upon being satisfied, by atBdavit, of th^ commission of the offence, either: 1. JIake an order, requiring the accused to show cause before it, or "him, at a time and place therein specified, why the accused should not be punished for the alleged offence ; or 2. Issue a waiTant of attachment, directed to the sheriff of a particu- lar county, or, generally, to the sheriff of any county where the accused may be found, commanding' him to arrest the accused, and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged offence. § 2272. An order to show cause maj' be made or a warrant may be issued, as prescribed in section two thousand two hundred and sixty- nine of this act, by a referee appointed by the court, where the offence is committed upon the trial of an issue referred to him. or consists of a witness's non-attendance, or refusal to be sworn or to testify, before him. The order or warrant may, in the discretion of the referee, be made returnable before him, or before the court. Where it ia made returnable before the referee, he has all the power and authority of the court with respect to the motion or special proceeding instituted thereby. The referee upon a trial has all the power and authority of the court with respect to the motion or special proceeding instituted to punish a person for contempt, but in actual practice the application to punish is usually made directly to the court wherein the action is pending. The forms p;iven hereafter are taken mainly from cases where the proceedings to punish for contempt were instituted before and controlled by the court. In case it should be desired to institute the proceed- ings directly before the referee, and make the order to show cause, or the warrant of attachment, or the habeas corpus in a proper case, returnable before him, the forms given would require considerable modifica- tion. Only the forms most frequently required are here insei-ted, as it would prolong this chapter to an undue length to insert herein forms for aU possible contingenci'i^'? in contempt proceedings upon references. CONTEMPT. 173^ § 5. Proceedings begun by attachment. — If the contempt proceedings are begun by warrant of attachment, a copy of the same, and of the affidavit upon which it is- issued, must be served upon the accused when he is arrested by virtue thereof (§ 2'27i:, Code Civ. Pro.) A warrant of attachment is defined to be "a mandate, whereby an original special proceeding is instituted- against the accused, in behalf of the people, upon the relation of the complainant " (| 2273, Code Civ. Pro.). At the time of issuing the warrant, the referee, if the warrant is issued by him, otherwise, the court, may,. by endorsement, fix a sum in which the accused may give an undertaking for his appearance to answer (§ 2275, Code Civ. Pro.). If the warrant is not so endorsed, or no undertaking given, the sherilf must keep the accused in his custody until further order of the referee or court, but need not restrain him of his liberty, further than is necessary to secure his personal attendance (§ 3776, Code Civ. Pro.). If the accused gives an undertaking with two sufficient sureties to the effect that he will appear at the time and plaee where waixant is returnable and then and there abide by the direction of the referee or the court, he must be dis- charged from arrest (§ 2277, Code Civ. Pro.). "Where, at the time, the accused is already in custody under other process of court, no warrant of attachmejit is issued, but in lieu thereof a writ of habeas corpus is issued directed to the officer in whose custody the- accused then is requiring him to bring the accused before the court. Such officer must comply with the writ, and detain the accused where the court is sitting until the further order of the court (§ 2278, Code Civ. Pro.). Though section 2278, when read literally, seems not to provide for a contempt proceeding, when instituted' by and pending before a referee, where the accused is already in custody, still, when read in connection with section 2280, both being in pari materia, it is seen that 174: CONTEMPT. the plain intention was to include such contempt pro- •ceedings. Upon the appearance of the accused to answer the <;harge of contempt the procedure is pointed out in the following sections of the Code of Civil Procedure. § 2280. When the accused is produced, by virtue of a warrant, or a writ of habeas corpus, or appears upon the return of a warrant, the *ourt, judge, or referee, must, unless be admits the offence charged, •cause inten-ogatories to be filed, specifying the facts and circumstancea • of the offence charged against him. The accused must make written answers thereto, under oath, within such reasonable time as the court, judge, or referee allows therefor ; and either party may produce affida- vits, or other proofs, contradicting or corroborating any answer. Upon the original affidavits, the answers, and subsequent proofs, the court, judge, or referee must determine, whether the accused has committed the offence charged. § 2281. If it is determined that the accused has committed the offence charged ; and that it was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of a party to an action or special proceeding, brought in the court, or before the judge, or referee ; the court, judge or referee must make a final order accord- ingly, and directing that he be punished by fine or imprisonment, or both, as the nature of the- case requires. A warrant of commitment must issue accordiagly. § 2282. Where the accused is brought up by virtue of a writ of habeas corpus, he must, after the final order is made, be remanded to the custody of the sheriff, ,or other officer, to whom the writ was directed. If the final order directs that he be punished by imprisonment or committed until the payment of a sum of money, ho must be so imprisoned or committed, upon his discharge from custody under the mandate, by virtue of which he is held by the sheriff or other officer. The punishment is prescribed in sections 228i, 2285, •Code Civ. Pro., infra. The following are approved forms of attachment, of order for commitment to issue, and of commitment, where the contempt upon the reference is punished by the court appointing the referee. The affidavit to procure the warrant of attachment would be similar in form to the affidavit used to procure an order to show -cause why the accused should not be punished as for contempt, given below under section 5 of this chapter. Where the proceeding is whoUy before the referee, the warrant should of course be issued and signed by him ; also the order directing the commitment, and, it has been suggested, the commitment — the referee, by sec- tion 2272, supra, having all the power of the Court with CONTEMPT. 175 respect thereto (Eiddle and BuUard's Supplementary Proceedings, page 271). Form of warrant of attaclimeut The People of the State of New York, to the Sheriff of the County of New York, GHEETING. Whereas, it has been made to appear to tliis court that 0. D. has been guilty of contempt of court in that he did on the day of , 188 , wrongfully and wilfully dis- obey an order of the Supreme Court in an action pending therein, wherein A. B. was plaintiff and C. D. defendant duly entered in the office of by {specifying the acts of contempt). Now, therefore, you are commanded to arrest the defend- ant C. D. and have him before said Supreme Court at Special Term thereof, to be held at Chambers thereof in the County Court House in the City of New York at o'clock in the forenoon, on the day of , 188 , to answer for said contempt, and have you then and there this writ. Witness, Hon. E. F., one of the Justices of the Supreme Court of New York, at the Court Plouse, in the City of New York, this day of , 188 . Q. H. Justice Supreme Court. E. F., plaintiff's attorney. Endorsed : (Let the accused give an undertaking in the sum of for his appearance to answer. G. H., J. S. C.) /Fall Brook Coal Co, v. Hecksher, 42 Hun, 534.) 176 CONTEMPT. Form of order for commitment At a Special Term, etc. Present, Hon. Justice. The People of the State of New York, at the relation of A. B., complainant. vs. CD., defendant. A warrant of attachment having heretofore been issued ont of this court commanding the sheriff of the City and County of New York to arrest the above named defendant, 0. C, and bring him before this court, to answer for his contempt thereof in the above entitled proceeding, and said sheriff having arrested said defendant and brouglit him before this court and interrogatories having been filed in behalf of plaintiff and said defendant having answered the same, and submitted the affidavits of ; And it appearing from an affidavit of the complainant^ A. B., dated the day of , 188 , upon which said warrant of attacliment was issued, the defendant's answer to said interrogate .'ies, and the affidavits of that said defendant has Veen guilty of contempt of court, in that he did on the day of , 188 , {specifyiTig the aots constituting contempt) ; And that su'.'L conduct was calculated to and actually did defeat, imf air, impede, or prejudice the rights and remedies of the pl^-rjuJir herein. Now xhi'i on reading and filing said affidavits, answer, warrant of o.Lt-ichment, and the sheriff's return, it is hereby Ordered &.id adjudged, on motion of E. F., plaintiff's attorney, that said C. D. is guilty of contempt of court, and that the rights and remedies of the complainant, A. B., have been prejudiced tliereby and that said complainant has been damaged thereby to the extent of besides the costs and expenses of this proceeding, and it is further Ordered and adjudged, that said C. D. be fined therefor COKTEMPT. 177 the sum of the amount of the aforesaid damages for his misconduct, and that he pay said sum forthwith to tlie clerk of this court for indemnity and use of plaintiff. It is further ordered that the said defendant, C. D., pay to said clerk for the use of plaintifE the costs and expenses of these proceedings, amounting to the sum of It is further ordered, that said defendant, C. D., be imprisoned in the common jail of the City and County of New York until said fine, including said costs and expenses, be paid, but not exceeding six months, and that a warrant of commitment issue accordingly. ; (Fall Brook Coal Co. v. Hecksher, 42 Hun, 534). Form of Trarrant of commitment. SCTPEEME CoUET, City and County of New York. The People of the State of New York at the relation to A. B., complainant. vs. CD., defendant. The People of the State of New York to the Sheriff of the City and County of New York, GREETING. Whekeab, an order was made by the Supreme Court at a Special Term thereof,. held at , on the day of , 188 , in the above entitled proceeding that C. D., defendant, be committed to the common jail of the City and County of New York, there to remain charged with the con- tempt mentioned in said order, until he should have paid the fine mentioned in said order, imposed upon him for his said misconduct, amounting to the sum of dollars, tot^etlier with the costs and expenses of the proceeding to punish for such misconduct, amounting to the sum of dollars, and that a warrant of commitment issue accordingly, 12 ITS CONTEMPT. Now, THEREFORE, we Command you that you take the body of the said C. D. and him safely and closely keep in your custody, in the common jail of the City and County of New York, until he shall have fully paid the line imposed as aforesaid, to wit : the sum of dollars, and also the costs and expenses aforesaid, amounting to dollars, and your fees hereupon, or until the said C. D. shall be discharged according to law, but for a time rot exceeding six months, and that you make return of this writ with your proceedings thereon to our said court. Witness, Hon. etc. (Test.) J. L., Clerk, E. F, attorney for A. B. (Lansing's Forms, No. 1206.) § 6. Proceedings begun by order to show cause. — Pro- ceedings to punish for contempt are usually begun by an order to show cause upon afl&davits setting foi-th the facts. This order to show cause may be made at any time before or after the final judgment in the action or final order in the special proceeding, and, when returnable before the court, may be made by any judge authorized to grant an order without notice, and must be made returnable at a term of court, at which a contested motion may be heard (§§ 2271, 2273, Code Civ. Pro.). The apphcation is really a motion in the original action or proceeding, and papers are entitled the same as in that (§ 2273, Code Civ. Pro.). Accordingly, if the party has appeared by attorney in the action, ser- vice of the order to show cause and affidavits upon him is sufficient. The question of contempt and penalty to be imposed therefor, if any, are determined as upon a motion, i. e., upon the appearance of the accused to answer the charge of contempt, begun as described in this section, he may move for a denial of the motion on the ground that a prima facie case is not made out by the com- CONTEMPT. 1T9 plaiiiant against him, or, the accused may by affidavits ■on his part deny the averments of the complainant's affidavits and justify the alleged acts of contempt. The motion to punish will, thereupon, be granted, or denied, according to the usual practice upon motions. The section of the Code relating thereto is as follows: § 2233. Upon the return of an order to show cause, the questions •which arise must be determined, as upon any other motion ; and, if the- determination is to the effect specified in the last section but one, the order thereupon must be to the same effect as the final order therein ■prescrilied. Upon a certified copy of the order so made, the offender may be committed, without further process. Except in the case mentioned in section 2267 of the Code of Civil Procedure, the proof of the acts or act constituting the contempt must be made by affidavit. The referee's certificate is insufficient (§ 2269, Code Civ. Pro. ; Albany City Bank v. Schermerhorn, 9 Paige Ch. 372). The affidavit to obtain the order to show cause would be substantially the same as that used to obtain the warrant of attachment. The order, thereon, in case the accused is found guilty, is that he be punished as prescribed in sections 22Si, 2285, infra. As stated above in section 2283 of the Code of Civil Procedure, the offender may be committed upon a cer- tified copy of the order adjudging him guilty of con- tempt without further process. No commitment, as such, is necessary or proper. An approved form of an order to show cause, affidavit to procure same, an order fining the accused and directing his imprison- ment, is given below. Where the proceeding is wholly before the referee, the order to show cause, and order imposing fine and directing imprisonment, are made .and signed by the referee. 180 CONTEMPT. Form of order to show cause. Stjpeeme Couet, City and County of New Tork. A. B., plaintiff. vs. CD., defendant. On the annexed affidavit of A. B., verified the day of 18 , and the affidavit of E. F. his attor- ney, verified the day of 18 , by which it appears to my satisfaction tliat the defendant, C. D., has refused to obey the order and direction made by me a& referee upon the trial of the issues in this action, on the day of j 18 , directing and requiring the said C. D. to file an account between himself and the plaintiff, in respect to the partnership transactions of th& firm of A. B. & Co., since January 1, 18 , and that a personal demand thereof has been made upon said- defendant, C. D., and refused by him, and that a right and remedy of the plaintiff in said action has been defeated, impaired, impeded or prejudiced by his said refusal, On motion of E. F., attorney for plaintiff. Ordered, that the said C. D., show cause at a Special Term of the Supreme Court, to be held at the Chanibers- thereof, at the Court House in the City of New York, on the day of > 18 , at eleven o'clock in the forenoon, or as soon thereafter as counsel can be heard, why he should not be punished for his alleged offence and contempt. Copies of the affidavits and other papers on which this order is granted, must be served ilpon the said C. D., personally, at least two da^'s previ- ous to said day of , 18 . Dated N". T., , 18 . G. n., referee. (See Naylor v. Naylor, 32 Hun, 228). CONTEMPT. 181 Form of affidavit to obtaiu order to show cause. SUPEBMB COUET, Oitj and County of New York. A. B. vs. CD. City and County of New York, as. : E. F., being duly sworn, says: I am plaintiff's -attorney in this action. I. Said action is brought for an accounting between the parties as partners after dissolution of the firm, and for usual equitable relief. II. That the defendant has answered. III. That by an order of the court, dated the •day of , 18 , entered upon consent of the parties, the said actions and the issues therein were duly referred to G. H., Esq., as referee to hear and determine. TV. That the parties entered upon the trial of said action before said referee. Y. That in the course of said trial, on the day of 18 , the plaintiff's counsel moved upon the pleadings for a direction by the referee that the defendant account as to the partnership transactions subsequent to January 1, 18 . VI. That after argument by counsel for both parties, the said referee overruled the defendant's answer and granted said motion in the following words : " The plaint- iff's motion is granted, and the defendant is required to file an account from January 1, 1888," and said I'eferee directed the same to be entered by the stenographer upon the minutes of the trial, and the same was entered therein. VII. That immediately upon such direction being made by said referee, and entered as aforesaid, I. J., of counsel for defendant, said : " The defendant excepts and does not file the account." The referee asked "Mr. I. J.: Do you mean he refuses to file an account ?" to which Mr. I. J. replied : " Yes, I speak for the defendant." 182 CONTEMPT. 1 thei-eupon asked the defendant personally, in tlie- presence of the referee, and of his attorney, E. F., and hi» said counsel, if he refused to file the said account directed by the referee, and he replied that he did so refuse, and that thereupon the hearing before said referee was adjourned to > 18 , on motion of plaintiff's counsel that plaintiff might apply for such remedy in the premises as he should be advised. A copy of the minutes of the trial of said action are hereto annexed, and ar^ substantially correct. That no previous application has been made for this order. Sworn to before me, E. F. this day of 18 . ■ (See Naylor v. Naylor, 32 Bim, 228.) Form of order flning offeniler. At a Special Term of the Supreme Court, held at the Chambers thereof in the Court House of the City of New Tork, on the day of 188 . Present, Hon. Justice. A. B. vs. , CD. An order having heretofore and upon the day of 188 ,been granted by Mr. Justice in this action, requiring the defendant, among other things, to- show cause upon the day of , 188 , why said defendant should not be puuished for his contempt in dis- obeying the order of the court, dated , 188 , and the said motion thereafter, and upon the day of , 188 , coming on to be heard, and upon reading- and filing the said order to show cause, and said order dated as stated above, the affidavits of in support CONTEMPT. 183 of said motion, and the affidavits of in opposition, and it appearing therefrom that said defendant did knowingly and wilfully disobey said order by [specify- ing acts of misconduct), and that said misconduct of said defendant was calcnlated to and actually did impair, impede and prejudice, the rights and remedies of the plaintiff. ]S"ow, after hearing E. F., of counsel for plaintiff, in favor of said motion, and G. H., of counsel for defendant, in opposition, on motion of E. F., plaintiff's attorney, it is. Ordered and adjudged, that said defendant, 0. D., is guilty of contempt of this court in having wilfully disobeyed the order herein dated by (specifying ihs acts of con- tempt), and that said defendant be fined for plaintiff's indemnity and punished as follows : It is ordered and adjudged that said defendant be fined, and pay over to plaintiff or his attorney forthwith the sum of the amount so paid out in violation of said order, and the further sum of the necessary costs and expenses incurred by plaintiff in this proceeding, making altogether the total sum of and that in default thereof the said defendant be committed by the Sheriff of the City and County of New York to the common jail of said City and County, and there detained until said fine be paid, or until discharged according to law, but not exceeding altogether the term of six months. And that said defend- ant be so committed upon a certified copy of this order without further process. (See Brett v. Brett, 33 Eun, 547.) § T. Default of accused. — In case the accused fails to appear before the referee or court when served with the order to show cause, the determination will be the same as upon any other motion, and, if the affidavits make out a clear case of contempt, an order will be made granting the motion, and upon a certified copy of the same the accused may be committed. 184 CONTEMPT. When a warrant of attachment has been issued or, in a proper case, a habeas corpus, and the accused has given an undertaking for his appearance and fails to appear on the return day, the court may either issue another warrant, or make an order directing the under- taking to be prosecuted, or both (§ 2288, Code Civ. Pro.). Where such an order is made, it may direct the prosecution in the name of any party aggrieved by the misconduct of the accused, and damages may be recovered to the extent of the loss or injury sustained, together with the costs and expenses of prosecuting the special proceeding in which the warrant was issued (§2289, Code Civ. Pro.). If judgment is obtained against the sm-eties in such an action, and execution returned (unsatisfied ?) an action may be maintained by the plaintiff, who obtained the judgment, against the sheriff, where, it appears that at the time of giving the undertaking the sureties were insufficient, and the sheriff had reasonable grounds for doubting their suf- ficiency (§ 2291, Code Civ. Pro.). § 8. Punisliment. — It having been ascertained that a contempt has been committed by the accused, it remains for the referee, if thei proceeding or motion to punish for the contempt is pending before him, other- wise, the court, to determine what the punishment ■shall be. The sections of the Code of Civil Procedure relating thereto are as follows : § 2284. If an actual loss or injury has been produced to a party to an action or special proceeding, by reason of the misconduct proved against the offender, and the case is not one where it is specially pre- scribed by law, that an action may be maintained to recover damages, for the loss or injury, a iine, sufficient to indemnify the aggrieved party, must be imposed upon the offender, and collected, and paid over to the aggrieved party, under the direction of the court. The payment and acceptance of such a fine constitute a bar to an action by the aggrieved party, to recover damages for the loss or injury. Where it is not shown that such an actual loss or injury has been pro- duced, a fine must be imposed, not exceeding the amount of the complainant's costs and expenses and two hundred and fifty dollars in CONTEMPT. 185 addition thereto, and must be collected and paid in like manner. A corporation may be fined as prescribed in this section. § 2286. Where the misconduct proved consists of an omission to perform an act or duty, which it is yet in the power of the offender to perform, he shall be imprisoned only until he has performed it, and paid the fine imposed. In such a case, the order, and the warrant of commitment, if one is issued, must specify the act or duty to be per- formeii, and the sum to be i)aid. In every other case, whore special provision is not otherwise made by law, the offender may be impris- oned for a reasonable time not exceeding six months, and until the fine, if any, is paid ; and the order, and the warrant of commitment, if any, must specify the amount of the fine, and the duration of the imprisonment. § i3236. Where an offender, imprisoned as prescribed in this title, is unable to endure the imprisonment, or to pay the sum, or perform the act or duty, required to be paid or performed, in order to entitle him to be releatied, the court, judge, or referee, or, where the commitment was made as presciibed in section two thousand four hundred and fifty- seven of this act, the court, out of which the execution was issued, may, in its or his discretion, and upon such terms as justice requires, make an order directing him to be discharged from the imprisonment. With respect to the fine referred to in the foregoing sections, contempts are of two kinds : (1) Contempts whereby actual loss or injury has been produced to a party ; (2) Contempts producing no loss or injury to a party. And with respect to the length of imprisonment they are also of two kinds : (1.) Contempts consisting of an omission to do some- thing which it is yet in the power of the offender to do, and pay the fine imposed, in which case the orders and warrant of commitment, if any, must specify the act to be performed and sum to be paid (People ex rel. Jones V. Davidson, 35 Hun, 471). (2.) All other contempts, not otherwise specially provided for, for which the offender may be imprisoned a reasonable time not exceeding six months, and until the fine is paid, and the order and warrant of commit- ment if any, must specify the amount of the fine and duration of imprisonment. As a punishment for a contempt whereby actual loss or injury has been produced to a party, a fine must be imposed sufficient to indemnify the aggrieved party. The language of the section and the use of the word 186 CONTEMPT. imdemnify requires the court to impose a fine upon the offender that will compensate the aggrieved party for the loss directly resulting from the act of contempt and the necessary expense of instituting the contempt proceedings including counsel fees (Brett v. Brett, 33 Hun, 54:7). In the order fining the offender and di- recting the imprisonment, and the order directing a commitment to issue, there should be an adjudication as to the extent of the injury or loss resulting from the contempt. In order, therefore, that a court or ref- eree may legally adjudge that a party is guilty of con- tempt, whereby actual loss or injury has been produced to the complainant, the amount of such loss or injury is not to be fixed arbitrarily, but must rest upon the facts proved (Simmonds v. Simmonds, 6 Week. Dig. 263 ; King v. Flynn, 37 Hun, 329). As a punishment for a cpntempt not resulting in los& or injury to a party, a fine of $250 and the complain- ant's costs and expenses must be imposed on the of- fender. To whom such a fine, other than the cost* and expenses, is to be paid, is uncertain. It has been intimated that it should be paid into the treasury of State (King v. Flynn, 87 Hun, 329 ; § 2284, Code Civ. Pro.). In King v. Mynn the usual costs for at- tendance at court upon a motion, viz. : $10, and the actual disbursements in the proceedings for service of papers, were allowed the complainant for the costs and expenses mentioned in the Code, in addition to the fin& for his indemnity. § 9. Acts construed as contempts. — Arresting a party at- tending pursuant to subpoena the sittings of commis- sioners under a commission of bankruptcy {Exp. King, 7 Ves. Jr. 312) ; breaking open the desk of a clerk in the register's office by solicitor's clerk {Exp. Burrows, 8 Ves. Jr. 535); refusing to allow a witness while testify- ing to examine books to enable adverse party to question him, — said books having been produced before referee pursuant to subpoena duces tecum (Sudlow v. KJnox, 4r CONTEMPT, 18T Abb. Ct. of Ap. Dec. 326); appearing before referee pur- suant to subpoena, refusing to be sworn, and leaving the room (Howe v. Welch, 11 Civ. Pro. Eep. 444); surrep- titiously obtaining possession of books containing evi- dence for defendant by plaintiff and neglecting to pro- duce them before referee pursuant to subpoena (Bone- steel V. Lynde, 8 How. Pr. 226); abusing, threatening, and insulting a suitor or one of his witnesses whil© attending in the master's office (French v. French, 1 Hogan, 138); breaking open in master's office pai'ts of books sealed up — said books having been there deposi- ted by one party to enable adverse party, the accused,, to examine same (Dias v. Merle, 2 Paige Ch. 494) ; counsel instructing witness in presence of referee not to answer certain questions (Heerdt v. Wetmore, 2 Eobt. 697) ; refusal to answer questions deemed to be material by referee (Burnett v. Phaion, 11 Abb. Pr. 157) ; terrifying a witness about to be examined before a commissioner (Partridge v. Partridge, Toth. 40) ; sending a threatening letter to a master before whom the writer had a case pending (Charlton's Case, 2 Mylne & C. 316); wilfully persisting to dictate and control the answers of a witness before an examiner (United States V. Anonymous, 21 Fed. Eep. 761) ; insulting and abus- ing the examiner after leaving his office (Id.). An oral direction given by a referee to a witness is sufficient, it need not be in writing (Lathrop v. Clapp, 40, N. Y. 328, at page 337). § 10. Acts held not contempts. — Eef usal to answer ques- tions under advice of counsel, the materiality of ques- tions not having been passed npon by master (Fobes V. Meeker, 3 Edw. Ch. 4.52 ; In re Judson, 3 Blatch. 148); refusal to leave books with referee at termi- nation of sitting (Sudlow v. Knox, 4 Abb. Ct. of Ap. Dec. 326). PART 11. INTERLOCUTORY REFERENCES. CHAPTER I. Provisions Generally Applicable. § 1. General Considerations. § 2. Bringing on the Reference. Form of Summons. § 3. Control over Books and Papers Produced. § 4. Referee Regulating the Proceedings. § 5. Oath of Referee. § 6. Examination of Witnesses. Form of Minutes of Testimony. § 7. Signing the Testimony. § 8. Filing the Report and Testimony. § 9. Filing Exceptions. § 10. Hearing Exceptions and Confirming the Report. § 11. Control over Reference. Ordering further proof. § 12. Revievr of Order made upon Report. § 13. Fees. § 1. General considerations. — Interlocutory references may be defined as references for any purpose short of hearing and determining all the issues in an action. The procedure in such references is an inheritance of the former chancery system, and though by section 827, Code Civ. Pro., it is enacted that "where, according to the practice of the court of chancery, on the 31st day of December, 1846, a matter was referable to the clerk, or to a master in chancery, a court having authority [1881 IKTEELOCITTORY REFERENCES GENERALLY. 189' to act thereupon, may direct a reference to one or more persons, designated in the order, with the powers which were possessed by the clerk, or the master in chancery, except where it is otherwise specially pre- scribed by law," and Eule 85, Gen. Eules Prac, directs that " in cases where no provision is made by statute,. or by these rules, the proceedings shall be according, to the customary practice as it formerly existed in the court of cliancery or supreme court, in cases not pro- vided for by statute or by the written rules of those courts," yet very much of the former chancery prac- tice, which was applicable to the system of masters is- no longer in existence. By the Constitution of 1846, the court of chancery, with its system of masters and examiners, was abolished, and it was provided (Art. VI., § 10) "that the testimony in equity cases shall be taken in Uke manner as in cases at law." This, how- ever, did not and could not abolish the inherent dis- tinctions between the nature of equitable and common law relief ; but it assimilated the forms of procedure as far as practicable to common law methods. And this has been the effect of the Code of Procedure and the present Code of Civil Procedure. The fundamental characteristic of equity procedure, that complete rehef could be afforded, has been retained, but it is at present administered by the same tribunals, and in so far as the circumstances of the altered practice allow, in the same manner as what may be termed common law relief. The cardinal distinction between inter- locutory references and references to hear and deter- mine all the issues is, that, in the latter, judgment is had as of course, on the referee's report ; while in the former, application to the court is necessary ; depend- ing upon the nature of the reference, either upon the testimony taken, alone, or upon the referee's report, with the testimony annexed thereto. In a broad sense, the purpose of interlocutory references under the present practice maybe regarded as the conven- ient mode by which the court is enabled to have 190 INTERLOCUTORY REFERENCES GENERALLY. brought before it, proper findings upon subjects con- cerning which it desires information (see this illus- trated in Thurber v. Chambers, 4 Hun, 721), or as a delegation of power to carry into effect ministerially some act of relief which it would be inconvenient or <;umbrous for the court to execute personally (refer- ences to sell property and the like). The system of "paper trials," by which even in contested equitable actions it was refei-red to a master to take proof, for the purposes of a hearing thereupon, is abolished ; except of course as to the taking of testimony de bene esse or on commission, etc. (Waterman v. Waterman, 37 How. Pr. 3G ; Draper v. Day, 11 How. Pr. 439 ; Farmers' Nat'l. Bank v. Houston, 44 Hun, 567). An exception to this rule exi£.vs in the supreme court as the general successor of the equity powers of the former court of chancery, in the case of those summary applications where it was customary in the couit of chancery to direct a reference for the information of the court, as upon an application to vacate an assessment (Matter of Bohm, 4 Hun, 658.) Whether a reference is to be regarded as one to hear and determine all the issues, or is simply interlocutory, depends not so much upon the wording of the order directing the same, but upon the purpose for which it was intended. Even if on its face, "to hear and determine," it vdll be treated as interlocutory, if from the nature of the case that was the reference intended (Austin V. Ahearne, 61 N. Y. 6) ; and conversely, an order of reference, which on its face is interlocutory, may be deemed an order to hear and determine all the issues by the application of the same principles (Bouton V. Bouton, 42 How. Pr. 11). A mere direction in an order of reference to hear and determine, that the referee report, does not make the reference inter- locutory. It is interlocutory where an application to the court is contemplated or required before judgment can be entered thereupon (Chatfield v. Hewlett, 2 Dem. 191). The power to order an interlocutory , INTERLOCUTORY REFERENCES GENERALLY. 191 reference exists as against all parties over whcim the court has jurisdiction (Freudonthal v. Davis, 24 Week. Dig. 48. § 2. Bringing on the reference.— The order of reference usually directs when the first hearing shall be had before the referee. If it does not so direct, the referee fixes a time in his discretion. The parties under the chancery system (Eule 100) were brought before the master by a summons, issued by the master which was required to be served at such time prior to the day appointed for the first hearing as the master deemed reasonable, but in no case, unless otherwise ordered by the court, was the notice to be less than two days, where the solicitor for the adverse party resided in the same city and town, and not less than four days in addition, for every fifty miles froin his residence. The summons is still employed, though under the present practice a subpoena would answer the same purpose, and as it seems to the writer would conform the pro- ceedings better to references to hear and determine the issues. Form of Snmmons. Title of the case. In pursuance of the order of reference made in this cause, I, M. H., the referee therein named, do hereby summon you C. D., the defendant therein, to appear before me, at my office, No. street, in the city of , at o'clock in the noon, on the day of , to attend upon the matters in reference before me in such cause. Date. M. H., referee. [ Underwriting. 'I To proceed upon such reference and to produce the following books and papers {specifying thern].- The attendance of witnesses and the production of books and papers are secured by subpoena, the rules 192 INTERLOCUTORY REFERENCES GENERALLY stated with relation to references to hear and determine (see page 55) apply. Instead of resorting to a subpoena, an order may be made for the production of books and papers under Code Civ. Pro. §§ 867-869, by the referee (Pruden v. Tallman, 6 Civ. Pro. 360). § 3. Control over books and papers produced. — By rule lOS of the court of chancery, it was in the discretion of the master to determine what books, papers or writings were to be produced, and when and for how long they were to be left in his ofiice ; or in case he did not deem it necessary that they should be left or deposited in his office, he was at liberty to give directions for their in- spection by the parties requiring the same, as he con- sidered expedient. This rule is deemed in force under the present practice. I 4. Referee regulating the proceedings. — The order of reference may, and in all cases where the referee is to follow a special mode of procedure should, give direc- tions concerning the same. In the absence, however, of specific directions in this respect, the referee regu- lates the mode of procedure before him in his discretion. He has ample power to proceed from day to day until the business of the reference is finished, and to grant adjournments. His powers to regulate the proceedings on the reference were also complete under the chancery system (Rule 102). If some but not aU of the parties attended he had power to proceed ex parte (Eule 104). §5. Oath of Referee.— Section 1016, Code Civ. Pro. imposes the obligation of an oath upon a referee ' ' appointed as prescribed in either of the foregoing sec- tions of this titld" (see page 61.) The referees appointed as above, are those provided for in §§ 1C08-1015, Code Civ. Pro., namely : (1) To try issues of fact or law (§§ 1011-1012). INTERLOCUTORY REFERENCES GENERALLY. 193 (2) To report the referee's finding upon one or more specific questions of fact (§ 1012). (3) To take an account and report to the court thereon, with or without the testimony, after inter- locutory or final judgment, or where it is necessary to do so for the information of the court. (4) To determine and report upon a question of fact arising in any stage of the action, upon a motion or otherwise, except upon the pleadings. Accordingly it has been held, that upon a a interlocutory reference, not enumerated above, the referee was not required to take the usual oath (McGowan v. Newman, 4 Abb. N. 0. 80 ; but, contra, Exchange Fire Ins. Co. v. Eaiiy, 4 Abb. N. C. 78 ; 54 How. Pr. 279). It is submitted that the construction of section 1016, as given in the case of McGowan v. Newman, above, is an unnecessarily strict one, and that the referee should in all cases take the oath, and should annex it to the testimony, or if there is no testimony, then to his report. For form of oath see page 64, which can be adapted to suit the particu- lar duties the referee may be called upon to perform. § 6. Examination of witnesses. — The court may direct the order in which the witnesses shall be examined by the referee where this course may for any reason be desirable (Stubbs v. Ripley, 39 Hun, 620). Where no specific directions are given upon the subject, the referee determines in which order the witnesses are to be examined. The examination is conducted orally, as in references to hear and determine all the issues. The system of examination by written interrogatories, which prevailed to a large extent in the court of chan- cery, is considered no longer applicable. If the refer- ence is merely to take and report evidence, the referee takes and reports all the evidence which is offered (Fox V. Moyer, 54 N. Y. 125) ; but if the reference is to take evidence and report with opinion the practice is to regard the referee as vested with power to pass upon objections to evidence (Lincoln v. Lincoln, 6 Robt. 13 194 INTE3L0GUT0RY REFERENCES GENERALLY. 525 ; but contra, Scott v. Williams, 23 How. Pr. 393 ; s. c, 14 Abb. Pr. YO.) Whether upon a reference ordered under section 1015, Code Civ. Pro., to report upon a question of fact, testimony may be produced before the referee by commission is doubtful ; but it is certain that testimony cannot be received by commis- sion where the order of reference contains a special direction that the witnesses appear before the referee in- person, and the object of the reference is to secure a personal examination of the witnesses (Stubbs v. Eip- ley, 39 Hun, 620). Form of minntes of testimony. Title of the case. Before A. B., referee. New York, the day of Appearances. C. D., for plaintiflE. E. F., for defendant. K. G. sworn on behalf of plaintiffs. Question. Answer. [Here insert the testimony taken.'] Subscribed before me this day of A. B., referee. I K. G. •J §7. Signing the testimony. — Eule 30, Qen. Eules i*rac., pi^sepbes that in references other than the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses shall be signed by them, and the report of the referee shall be filed with the testimony. The rule requiring tlie isignature of the witnesses to their testimony is imperative, and must be complied with, unless waived (Bowne v. Leveridge, 8 Abb. N. C. 148, ?i.; s. C, 2 Month. L. Bull. 87). A mere omission to request the signatm-e is not a waiver (Id.). It is the INTERLOCUTORY REFERENCES GENERALLY. 195 duty of the partj: for whose benefit the order of refer- •ence is made to see to it that the witnesses sign the testimony ; if he permits the witnesses to retire without signing, he will be considered as waiving the irregu- larity (Rusk V. Marston, 1 Week. Dig. 566). As the failure to sign the testimony is deemed an irregularity of practice, the remedy is a motion for correction in this respect ; an exception to the referee's report would not lie for the same (National State Bank, etc. v. Hibbard, 45 How. Pr. 280). § 8. Filing the report and testimony. — Where the order of reference requires the referee to report, the report must be filed with the testimony. The report should be confined strictly to the matters upon which the referee has been dii'ected to report. The referee is not forbidden from writing an opinion (Matter of Chitten- den, 4 N. Y. State Rep. 606) ; though that course will seldom be necessary or even desirable in this class of cases. If the reference is in an action, section 1019, Code Civ. Pro. , providing that the report must be filed within sixty days after the matter is finally submitted, otherwise either party may serve a notice electing to end the reference applies ; but if the reference is made in the course of a special proceeding, this section is deemed to be inapplicable (Matter of Bennett, Daily Eeg. May 24, 1888 ; Godding v. Porter, 17 Abb. Pr. 374). Until the testimony is filed, the time to except does not begin to run (Pope v. Perault, 22 Hun, 468). § 9. Filing exceptions. — Rule 30, Gen. Rules Pi'ac, prescribes that the referee's report shall become absolute and stand as in all things confirmed, unless exceptions are filed and served within eight days after service of notice of fihng of the same. The object of the exceptions is to bring up the merits of the controversy (National State Bank v. Hibbard, -45 How. Pr. 280). Exceptions are to be filed when 196 INTERLOCUTORy REFERENCES GENERALLY. the referee decides some question,, but where the- reference is merely to tak:e_ evidence and report with opinion, no exceptions need be filed (Huelet v. Eeyns, 1 Abb. Pr. N. S. 27 ; Martin v. Hodges, 45 Hun, 38 ;. Matter of Attorney-General v. Continental Life Ins. Co., C4 How. Pr. 93 ; Matter of Steinert, 24 Hun, 246). Where exceptions are necessary, and they are not filed within the time limited by the rule, the report will become absolute (Matter of Leffingwell, 30 Hun, 528 ; Eust v. Hauselt, 46 Superior [J. & S.] 22 ; s. c, less fully, 9 Eep. 284 ; Catlin v. CatUn, 2 Hun, 378) ;. but to prevent a failure of justice, it has been intimated that permission might be given by the court to file the exceptions nunc pro tunc (Eust v. Hauselt, 46 Superior [J. & S.J 22 ; Matter of Attorney-Gen. v. Continental Life Ins. Co., 64 How. Pr. 93). The exceptions filed must be specific (National State Bank v. Hibbard, 45 How. Pr. 280), and must be- founded upon objections taken before the referee (Bel- mont V. Smith, 1 Duer, 675 ; s. c, 11 N. T. Leg. Obs. 216 ; Brown v. Mayor, 11 Hun, 21). The general rules stated in respect to the form of exceptions in references to hear and determine the- issues, apply also to exceptions to reports in inter- locutory references (see page 123). § 10. Hearing exceptions and confirming the report. — The^ report having been filed, eight days' notice of a motion to confirm is given. If exceptions are filed and served within such time the same may be brought to a hear- ing at any special terin thereafter, on the notice of any party interested therein (Eule 30, Gen. Eules Prac). The rule respecting the confirmation of the report was construed in Somers v. Milliken, Voorhee's Code, 6 ed. 616 ; s. c, 10th ed. 707, as follows : In all cases where any of the defendants appear so as to be entitled ta notice, the report cannot be confirmed until eight days after notice of fifing the same. All the parties who INTERLOCUTORY REFERENCES GENERALLY. 197 have appeared in the case or proceeding may consent in "writing to waive the delay of eight days, and have the report confirmed at once. Where no one appears for the defendant, the report may be presented to the ■court for the order of confirmation without waiting ■eight days. In references made merely to take the evidence and report with opinion as to facts arising upon a motion the report may be acted upon before eight days have •expired since its filing (Martin v. Hodges, 45 Hun, 38), -and in any proper case the court may shorten the time required to elapse before the report can be confirmed (Matter of Steinert, 24 Hun, 246). The report of a referee does not require confirmation unless it is intended to be made the foundation of some discretion- -ary act of the court (Grifling v. Gardiner, 5 How. Pr. 205) ; but where this is the case it must be confirmed {Bantes v. Brady, 8 How. Pr. 216 ; Belmont v. Smith, 1 Duer, 675 ; s. c, 11 N. Y. Leg. Obs. 216). The report is to be confirmed in the court in which the action originated (Gautier v. Douglas Manfg. Co., 39 Hun, 642 ; Empire Building Association v. Stevens, 8 Hun, 515). If during the course of an equitable action, tried at special term, a reference is directed, the confirma- tion must be at the special term, aud not at chambers (Empire Building, etc. Association v. Stevens, 8 Hun, 515). On the motion to confirm a referee's report • only the objections will be considered to which excep- tions have been filed (People v. Empire Mutual Life Ins. Co., Daily Eeg. Oct. 19, 1883). § 11. Control over reference, ordering further proof. It is always within the power of the court to which the referee's report is made to direct him to take further -or more specific proof (Kent v. Quicksilver Mining Co., .23 Hun, 199 ; N. Y., &c. Telegraph Co. v. Jewett, 16 IVeek. Dig. 419). 198 INTERLOCUTORY REFERENCES GENERALLY. § I'J. Eeview of order made upon report. — From the order made confirming the report, or refusing to con- firm the same, an appeal may be taken in a case author- ized by section 1347, Code Civ. Pro. ; or an appeal may be taken from the final judgment in the action which will bring up for review an interlocutory judgment, or an intermediate order specified in the notice of appeal and necessarily affecting the final judgment (Code- Civ. Pro. § 1316). A motion for a new hearing may be made at special term in an action triable by the court where a refer- ence was ordered to report, upon one or more specific- questions of fact ; at any time before the hearing of a motion for final judgment or the trial of the remaim'ng: issues of fact. (See § 1004, Code Civ. Pro.) And where a reference is ordered, either under § 1015 (See § 3 of the following chapter) or under § 1215 (See § 5 of the following chapter), either party- may apply for an order directing a new hearing upon proof that error was committed upon the hearing or in the report. In a proper case such application may be- granted even after judgment (Code Civ. Pro. § 1232). § 13. Fees. — The referee is entitled to the same fees- in an inteirlocutdry reference, viz. : six dollars per day for each day spetit in the business of the reference, as^ in references to hear and determine all the issues {for genefal rules relating to referee's fees, see page 158.) SPECIFIC INTERLOCUTORY REFERENCES. 199 CHAPTER II. Specific Interlocutory References. § 1. References to Decide Part of the Issues. § 2. References under Section 1015, Code Civ. Pro. (a.) To Take an Account. Form of Order of Reference to Take an Account Form of Order of Reference to Take Receiver's Account, etc. § 3. Procedure. Form of Referee's Report Taking and Stating an Account. (6.) To Determine and Report upon a Question of Fact. Form of Order of Reference to Report upon Specific Fact. Form of Report upon Foregoing. § 4. References to Take Affidavits or Depositions to be used on a Motion. Form of Report Attached to Depositions. § 6. References on Application for Judgment by Default. § 6. References to Ascertain the Damages Sustained by an Injunction, (a.) The Statute. (5.) When the Order of Reference may be Made. Form of Order of Reference, (c.) Upon what the Referee is to Report. {d.) Items Allowed as Damages. Form of Referee's Report (e.) Confirming the Report. (/.) Effect of the Ascertainment. § 7. References in the Exercise of Control over Attorneys. § 1. References to decide part of the issues. — Section 1013, Code Civ. Pro., after providing for a compulsory ref- erence of the issues, where the trial involves the exam- ination of a long account, provides for a reference of pai't of the issues, as follows: "In an action, triable 200 SPECIFIC INTERLOCUTORY REFERENCES. by the court, without a jury, a refereiice may be made, as prescribed in this section, to decide the whole issue, or any of the issues ; or to report the referee's finding, upon one or more specific questions of fact, involved in the issue. " Notwithstanding that a power seems to be con- ferred by this section to decide a part of the issues, it would be difficult, since the method of taking testi- mony in equity cases is under the present practice the same as in cases at law, to imagine a case where a reference would be ordered to decide a part of the issues, and since in order to obtain judgment upon such a reference an applicatioir to the court is contem- plated (Code Civ. Pro. § 1226), unless the other issues were previously disposed of by the court (section 1221), it is proper to regard references to decide a part of the issues as interlocutory. It is submitted, that a refer- ence of this character, when ordered, would have to be predicated upon a long account. In the great major- ity of cases, where a reference short of deciding all the issues is made, it is ordered under one of the provis- ions of section 1015, Code Civ. Pro., whereby the court is empowered in any action to direct a reference to take an account, or to determine and report upon a question of fact, arising in any stage of the action, upon a motion, or otherwise, except upon the pleadings. § 2. Eeferences under section 1015, Code Civ. Pro. — This section provides as follows: " The court may likewise, of In Chapter I. of tliis Part, we have endeavored to state ,the gen- eral principles governing interlocutory references. It is impossible to specify all the interlocutory references which may be ordered under the Code of Civil Procedure. We shall indicate in this chapter the more important and frequently employed references of this character. For the principles regulating references in particular actions or special pro- ceedings under the Code of Civ. Pro., the reader is referred to Part in. of this work ; and for the principles in particular actions or special proceedings under statutes other than the Code of Civ. Pro., the reader should consult Part IV. SPECIFIC INTERLOCUTORY REFERENCES. 201 its own motion, or upon the application of either party, without the consent of the other, direct a reference to take an account and report to the court thereon, either with or without the testimony, after interlocutory or final judgment, or when it is necessary to do so, for the information of the court ; and, also to determine and report upon a question of fact, arising in any stage •of the action, upon a motion, or otherwise, except upon the pleadings." (a) To take art account. The reference permitted under this subdivision of section 1015 was extensively em- ployed in the court of chancery, and authority to order the same exists as an inherent power of the court independently of the section. The substantive law to be applied in each case depends entii-ely upon the nature of the account referred. In the taking of the account the referee would apply the particular prin- ciples of law applicable to the nature of the matter before him. An order to take an account is not be- lieved to be appealable (Smith v. Dodd, 3 E. D. Smith, 348). Form of order of reference to take an account. At a special tenn, etc. Present, Hod. Justice. Title of the case. On reading and filing {specifying the papers vscd and- the proceedings had] and it appearing that the taking of an account is necessary for the information of the court, it is ordered, that it be referred to A. B., Esq., counselor at law, of No. street, in the city of , to take an account of the transactions mentioned in the pleadings in this action, and to report to the court thereon [and to return tlie testi- mony taTcen on such reference with his said reporf]. And it is further ordered, that all the parties hereto, are to pro- duce under oath, and leave with the said referee, as he shall 202 Specific interlocutoey references. direct, all books and accounts in tlieir possession or under their control, relating to the mattere in controversy herein \AdJ such further directions as may he expedient in the jparticular case\. Form of order of reference to take receiver's acconnt, etc. At a special term, etc. Present, Hon. Justice. On reading and filing \specifying the papers and the pro- ceedings'], after hearing A. B., attorney for the receiver^ etc., etc., it is ordered that C. ])., Esq., counselor at law, be and he hereby is appointed referee in this action to take the proofs and evidence that may be offered by K. G., said re- ceiver, or by any other parties interested herein, touching the matter of the compensation of the said K. G., as receiver,, together veith his expenses and any advances he may have made in his receivership, and that said referee i-eport to this court the evidence taken by him, witli his opinion thereon as to the allowance to be made to said receiver for his serv- ices, advances and expenses. And it is further ordered, that the said referee do also- take and state the acconnt of said K. G., as such receiver, and in taking such account he take such testimony as may be offered by any of the parties interested as to whether the accounts made or debts incurred by said receiver are just and proper charges against said estate, and that he report to this court the amount of said debts incurred by said receiver together with the evidence. § 3. Procedure. — On refei'ences to take an account the t'ormer chancery pi'actice is substantially in force,, except that the examination of the witnesses is con- ducted orally by the referee instead of upon interroga- tories as under the chancery system (see Palmer x\ Palmer, 13 How. Pr. 363). Under the chancery i^rao- SPECIFIC INTERLOCUTORY REFERENCES. - 203- tice, the accounting party was requii'ed to prepare an. account in the form of debtor and creditor, and verify the same either positively or upon information and belief (Eule 107 ; Wiggin v. Gans, 4 Sandf. Supr. 646 ; Story V. Brown, 4 Paige Ch. 112). This practice pre- vails at present (Spooner v. Lefevre, 2 Supm. Ct. (T. & C] 666). If the parties do not hand in an account- regularly laade up in this form, the usual practice is to employ an accountant to prepare it. Upon this account the ref ereo passes by an examination of the party off ei-- ing the same, and of the vouchers, books, witnesses^ etc. The rereree's duty is simply to state the account, according to the legal rules apphcable to the particular- subject before him. He has no control over the issues between the parties (Cameron v. Freeman, 18 How. Pr. 310). All objections to the mode of accounting: should be made before the referee at the time (Meth- odist Episcopal Church v. Jaques, 3 Johns. Ch. 11), and should be embodied in the exceptions filed to his report (Ketchum v. Clark, 22 Barb. 319). In his report the referee will state distinctly all the items allowed. (Spooner v. Lefevre, 2 Supm. Ct. [T. & C] 666. Form of referee's report taking and stating an account. Title of the case. To the court of Pursuant to an order of this court made in the, above entitled action the day of , referring it to me to- take and state an account of the transactions mentioned in the pleadings in this case, I do respectfully report : I. That I have been attended by [specifying the parties attending]. That prior to hearing the testimony or entering- upon the dubies of the said reference, I took the oath pre- scribed by section 1016 of the Code of Civil Procedure^ ■which is hereto aimexed. II. That I have examined all the vouchers, books and 204: SPECIFIC INTERLOCUTORY REFERENCES. witnesses, and have made tlie following allowances between tlie parties hereto, upon the basis of the accounts exhibited in schednle A, hereto annexed [specifying same]. in. That after maldng all just and proper allowances, and striking a balance, I find that nothing is due from either party to the othev [or ot/ierwise]. Annexed to this report is the testimony taken. All of wliich is respectfully submitted. Date. A. B., referee. (&.) To determine and report upon a question of fact arising in any stage of the action, upon a motion, or otherwise, except upon the pleadings. The references permitted under this portion of sec- tion 1015 are among the means possessed by the court, to acquire necessary information upon facts. Inde- pendently of the statute the court possesses an inher- ent power to direct references for its own information (People ex rel. Del Mar v. St. Louis, &c. Ky. Co., 19 Abb. N. C. 1; s. c, 44 Hun, 552; Dwight v. St. John, 25 N. Y. 203); the only limitation imposed being, that they shall not be upon the pleadings. The court has power to order the reference in form to determine "a disputed fact upon the argument of a motion " (Eiley V. Brown, 44 How.- Pr. 429); but a reference in this form is rare, and even if made would of necessity be interlocutoiy in natuz-e. Generally the references are to take the evidence and report the same, or to report the evidence with opinion. Eeferences to report upon specific facts arising upon motions are regarded as made for the benefit of each party (Stafford v. Ambs, 8 Abb. N. 0. 237). They are naade to I'eport upon the facts and not upon the law involved (Kelly v. Charlier, 18 Abb. K. C. 416). Eefer- ences of this character should not be made except where the court is unable to determine the' facts from the papers read upon the motion (Martin v. Hodges, 45 Hun, 38 ; Stelle v. Pahner, 7 Abb. Pr. 181). The reference may be (irdered whether the inability of the SPECIFIC INTERLOCUTORY REFERENCES. 205' court to come to a satisfactory conclusion on the papers presented arises from the obscure and ambigu- ous manner in which the facts are disclosed, or because the facts are disputed on each side. The occasion, upon which such references have been ordered are very- numerous. On motion to vacate attachment (Burnett V. Snyder, 41 Super. [J. &S.J 342 ; Killian v. Washing- ton, 2 Code Eep. 78), to cancel judgments (Dwightw. St. John, 25 N. Y. 203), to punish for contempt (Davies v. Davies, 20 Abb. N. C. 170), to set aside judgment obtained (Lincoln v. Lincoln, 6 Eobt. 525), on motion for mandamus (People ex rel. Del Mar v. St. Louis, &c. Ey. Co., 19 Abb. N. C. 1; s. c, 44 Hun, 552), on motion to appropriately mark a judgment docket (Munn V. Barnum, 2 Abb. Pr. 409). Upon motions to vacate orders of arrest, references are not encouraged (Huelet v. Eeyns, 1 Abb. Pr. [N. S.J 27; Stelle v. Palmer, 7 Abb. Pr. 181). Such references were, however, ordered in Bai-rou v. Sanford, 14 How. Pr. 443; s. c, 6 Abb. Pr. 320, n., and in Stafford v. Ambs, 8 Abb. N. C. 237. If a reference is ordered it is regarded as a postpone- ment of the decision upon the original motion (Stafford V. Ambs, 8 Abb. N. C. 237). The references of which we are here speaking should be executed with despatch, and hence a direction in an order of reference requiring the parties to proceed upon two days' notice is within the power of the court and proper (Stubbs v. Eipley, 39 Hun, 620). As the references are for the purpose of informing the court, the latter is at liberty to accept or disregard the referee's opinions upon the facts (Marshall v. Meech, 51 N. Y. 140). Such opinions are, however, entitled to respectful consideration (Woodford v. Easbach, 6 Civ. Pro. 315). By section 3172, Code Civ. Pro., express power is conferred upon the City Court of New York (formerly Marine Court) to direct references upon facts arising upon motions in any stage of an action. :206 SPECIFIC INTERLOCUTORY REFERENCES. Toriu of order of reference to report upon specific questions of fact ■nilli opinion. At a special term, etc. Present, Plon. Justice. Title of the case. A motion having been made herein [specify the nature thereof 1 upon whicli questions of fact liave arisen, it is ordered, that it be referred to A. B., Esq., counselor-at-law of street, in the city of , to take evidence and report the same to tliis court, witli his opinion thereon, upon the following questions of fact [specify the qtieslions ^ffact.] Form of report npon foregoing. Title of the case. To the court of Pursuant to an order of this court, made in the above entitled action on the day of , referring it to me to take the evidence and report with my opinion, I do hereby report that before proceeding to take said evidence, I took the oath prescribed by section 1016, Code of Civil Proced- ure, whicli is hereto annexed. I took testimony on the matters specified in said order, on the day of , being attended on said day by [spec- ify the parties attending] whicli testimonj' is hereto annexed; and 1 do further report that my opinion on the questions of fact in the said order named is as follows, viz.: [specify ,same.] All of which is respectfully submitted. Date. A. R, referee. § 4. References to take affidavits or depositions to be used on a motion. — Section 885, Code Civ. Pro. , provides that the order of reference must be founded upon proof by affidavit, that the apphcant intends to make the SPECIFIC INTERLOCUTORY REFERENCES. 207 motion', or that notice of a motion has been given, which the apphcant intends to oppose. The affidavit must specify the natui-e of the motion, and must show- that tlie affidavit or deposition is necessary thereon, and that such person has refused to make an affidavit of the facts which the apphcant verily beheves are within his knowledge. The order may be made upon ■or without notice. The person to be examined may be subpoenaed, and compelled to attend, as upon the trial. The deposition, when taken, must be delivered to the attorney for the party who procured the order, unless the order provides for a different disposition thereof. Form of report attached to depositions. Title of the case. To the court of I, A. B., referee, appointed by order dated the day of , to take the deposition of E. F., in the above entitled action, hereby report that in pursuance of the said order, the said E. F appeared before me on the day of , at my office, No. street, in the city of , at o'clock, and at subsequently adjourned days, and submitted to an examination, and made a deposition, which together with all proceedings had before me, I herewith deliver to G. H., the attorney for the party who procured the order for such examination. Date. A. B., referee. To obtain the reference the party applying for the same must satisfy the court or judge by competent proof that said apphcant intends to make or oppose a motion, and that it is necessary for him in making or opposing the motion to have the deposition of some person who refuses to make a voluntary affidavit (Moses V. Banker, 34 How. Pr. 212). Objections to the order of reference must be made 208 SPECIFIC INTERLOCUTORY REFERENCES. by the witness sought to be examined ; they cannot be raised by the opposite party (Erie Eailway Co. v. Champlain, 35 How. Pr. 73; McCue v. Tribune Associ- ation, 3 N. Y. Supm. [T. & 0.] 451; Eamsey v. Gould^ 39 How. Pr. 62). On such a reference it is not improper for the referee to put questions (Brooks v. Schultz, 3 Abb. Pr. N. S. 124). The reference cannot be made to examine a party to the action (King v. Leighton, 58 N. Y. 383) § 5. References on application for judgment by default. — Two classes of cases are provided for by the Code Civ. Pro. in which references are authorized upon appMca- tions for judgment by default. When the summona was personally served upon the defendant within the State, and the clerk cannot enter final judgment, the court may order a reference in its discretion, to make a computation or assessment, or take an account, or proof of a fact, for the purpose of enabling it to render the judgment or to carry it into effect, except that where the action is brought to recover damages for a personal injury, or an injury to property the damages must be ascertained by means of a writ of inquiry. Where a reference is directed in this class of cases (personal service of summons within the State) the court may order that the report be returned to the court for its further action, or may in its discretion, unless special provision is otherwise made by law, omit that direction, in which case, final judgment may be entered by the clerk, in accordance with the referee's report, without further application to the court (Code Civ. Pro. §§ 1214, 1215). Where the summons was served upon the defend- ant without the State, or otherwise than personally, the court may direct a reference to take proof of the cause of action set forth in the complaint (§ 1216). No provision is made for entering judgment upon the referee's report in this class of cases without applica- tion to the court upon the report. SPECIFIC INTERLOCUTORY REFERENCES. 209 The defendant may serve upon the plaintiff's attor- ney, at any time before the application for judgment by default, a written demand of notice of the execu- tion of any reference which may be granted upon the application. This demand is not an appearance. The demand must be subscribed by the defendant in person, or by an attorney or agent, who must add to his signature his office address, with the same particu- lars as are required concei-ning the office address of plaintiff's attorney in a summons. Thereupon the defendant becomes entitled to at least five days' notice of the time and place of the execution of the reference, to be served upon the person whose name is subscribed to the demand, in the same manner as a paper is required to be served upon an attorney in an action (§ 1219, Code Civ. Pro.). In respect to actions in the , supreme court, Eule 26, Gen. Rules Prac, provides that the reference, if directed, shall be executed in the county in which the action is triable, unless the court shall otherwise order. The references when ordered ^re usually in form "to take the material proofs in the action, and to report the facts found with opinion." A reference cannot be directed on application for judgment by default, in an action to recover damages for a personal injury (Boyce v. Comstock, 1 Code. R. [N. S.J 290 ; Thompson v. Finn, 11 Week. Dig. 182), or loss of personal property (Hewitt v. Howell, 8 How. Pr. 346), or for detention of the same (Horn v. Doody, 4 Duer, 670). A defaadant against whom an order of reference is regularly made upon an appUcation for judgment by default, cannot take advantage of irregularity in the making of an order of reference against a co-defendant (Chapman v. Lemon,' 11 How. Pr. 235). § 6. References to ascertain the damages sustained by an injunction. — (a.) The statute. Section 623, Code Civ. Pro. The damages sustained by reason of an injunc- 14 aiO SPECIFIC INTERLOCUTORY REFERENCES. tion, may be ascertained and determined by the court, •or by a referee appointed by the court, or by a writ of inquiiy or otherwise, as the court shall direct ; and the decision of the court thereupon, or an order confirming the report of the referee, is conclusive as to the amount of those damages, upon all the persons who ihave executed the undertaking, unless it is reversed upon appeal. The court may in its discretion, direct that the sureties have notice of the hearing, or of an appeal, and may prescribe the time and manner of giving them notice. (6.) When the order of reference maybe made. A judgment dissolving the injunction should be entered ibefore application is made for an order of reference to .ascertain the damages (Weeks v. Southwick, 12 How. Pr. ITO ; Lawton v. Green, 64 N. Y. 326). But the right to a reference to ascertain the damages is not lost by a mere discontinuance by the other side of the original action (Carpenter v. Wright, 4 Bosw. 655 ; Pacific Mail Steamship Co. v. Leuling, 7 Abb. Pr. :£N. S.] 37). Form of order of reference to ascertain damages sustained by an iiijnnction. At a special term, etc. Present Hon. Justice. Title of the case. The motion for a reference to ascertain the damages ^sustained by the , by reason of the injunction igranted in the above entitled action, the day of , coming on ito be heard, now after hearing A. B., of counsel for , etc., it is ordered tliat it be referred to E. F., Esq., counselor at hiw, to ascertain what, if any damages, the has sustiiined by reason of the said injunction, and to report thereon with all convenient speed. (Adapted from Roberts v. White, 73 K Y. 375.) SPECIFIC INTKRLOCUTOKY REFERENCES. 211 The order of reference should be confined to fixing the amount of damages. A provision therein requiring the party who procured the injunction to pay the damages is improper (Lawfcon v. Green, 64 N. Y. 326). (c) Upon what the referee is to report. The referee does not do his duty by reporting the facts, his business is to report the amount of damages sustained (Taaks V. Schmidt, 19 How. Pr. 413). He is not required to report in the form of findings of fact and conclusions of law, though that mode is often desirable ; but the practice is satisfied if he report his conclusion as to the ■damages sustained, with the items of allowance that he has made, together with the evidence taken (Mathews v. Muvchison, 14 Abb. N. 0. 512, n.). The merits of the original controversy ai'e not a proper subject of inquiry for the referee (Andrews v. GlenviUe Woolen Co., 50 N. Y. 282). (d) Items allowed as damages. Counsel fees actually paid for procuring the dissolution of the injunction •(Newton v. Eussell, 87 N. Y. 527 ; Eose v. Post, 56 N. Y. 603), or for which the party is liable (Wilde v. Joel, 15 How. Pr. 320 ; Fitzpatrick v. Flagg, 12 Abb. Pr. 189), are proper items ; of damage. And such counsel fees are proper items, though the motion to dissolve is denied because the court decUnes to pass thereupon until the trial of the action (Andrews v. GlenviUe Woolen Co. , 50 N. Y. 282). But counsel fees incurred for procuring a dissolution are not proper items, if the party accepts an extra allowance in the action, which is intended to embrace aU the extra costs therein (Disbrow v. Garcia, 52 N. Y. 654). Counsel fees in- curred on the trial of the action are not proper sub- jects of allowance, unless the trial was necessary, not merely to dispose of the issues, but also to get rid of the injunction (Andrews v. GlenviUe Woolen Co., 50 N. Y. 282 ; Disbrow v. Garcia, 52 N. Y. 654), or solely or principally in consequence thereof (Newton v. Eussell, S7 N. Y. 527). And if it is intended to allow for coun- 212 SPECIFIC INTERLOCUTOEY REFERENCES. sel fees incurred on the tiial, they should be carefully distinguished from counsel fees incurred in procuring the dissolution, and not lumped together (Strong v. De Forest, 15 Abb. Pr. 427), Counsel fees incurred on the reference to ascertain the damages are proper items (Eose v. Post, 56 N. Y. 603 ; Newton v. Russell, 87 N. y. 527). When the party procuring an injunction order, ia consequence thereof, through his agents, removes property belonging to the party against whom the order is issued, it is proper in assessing the damages- sustained, to allow the latter the value of such prop- erty, although an independent action for the tort might have been maintained (Barton v. Fisk, 30 N. Y. 166). But the damages actually allowed cannot ex- ceed the amount specified in the bond (Lawton v. Green, 64 N. Y. 326). The fees of the referee are,, of course, a part of the damages allowed. In the special cases where the defendant enjoined. was an officer of a corporation, or joint stock associ- ation, or a bailee, agent, trustee, or other representative- of another, and the damages sustained by him, are- less than the sum specified in the undertaking,, section 624, Code Civ. Pro. , provides that the court or the referee may also separately ascertain and determine the damages sustained, by reason of th3 injunction, by the corporation, association or person, whom the defendant represents, to an amount not exceeding the surplus of the sum specified in the undertaking ; and those damages may be recovered in a separate- action, brought upon the injunction undertaking. Form of referee's report ascertaining the damages. Title of the case. To the court of In pursuance of an order made and entered in the above entitled action, the day of , by wliich it was iHiferred to me to ascertain what, if any, damages the SPECIFIC INTERLOCUTORY REFERENCES. 213 •defendants had sustained by reason of the injunction issued ■on the day of , I do respectfully report : i I. That I have been attended upon the reference by {specifying theparUes attending]. II. That before hearing the testimony, I took the oath prescribed by section 1016 of the Code Civil Procedure, ■and liave annexed the same to this report. III. I find that the said defendants have sustained damages by reason of the said injunction as follows : By loss of months' rent, dollars; by necessary pay- ments for extra tiaie and labor, dollars ; by necessary counsel fees in arguing the injunction, dollars [by counsel fees for trying the issues, dollars] ; by counsel fees for attending this reference, dollars ;. by my fees as referee, dollars ; and that the damages so sustained ■amount in the aggregate to the sum of dollars. All of which is respectfully submitted. Date. A. B., j'eferee. (e) Confirming the report. The referee's report hav- ing been made must be confirmed by the court (Griffing V. Gardiner, 5 How. Pr. 205). The court may in its dis- cretion hear the sureties on the apphcation to confirm the report (Methodist Churches v. Barker, 18 N. Y. 463). (f) Effect of the ascertainment. The. ascertainment of the damages is conclusive as to thp amount upon all persons who have executed the undertaking, unless it is reversed on appeal (Code Civ. Pro. § 623 ; Wilde v. Joel, 15 How. Pr. 320 ; Methodist Churches v. Barker, 18 N. Y. 463). The damages having been as- certained, any person, entitled to the benefit of the injunction undertaking, may bring an action thereon, without further leave of the court (§ 626, Code dv. Pro.). § Y. 'References in the exercise of control over attorneys.^ "These references, which might with equal propriety in the large majority of cases be placed in the category of 214 SPECIFIC IXTERLOCUTOEY REFERENCES. references of specific facts arising on motions, are treated here as an exercise of the general power which courts possess over attorneys practicing before them. A motion to punish an attorney for contempt in not paying over moneys collected is referable (Matter of Steinert, 24 Hun, 246) ; and so references may be made to ascertain the value of an attorney's services in disputes between himself and his clients respecting the same, arising in the course of an action (Amsdell v. Martin, 20 Week. Dig. 370 ; Chatfield v. Hewlett, 2 Dem. 191), or in a proceeding to compel him to pay over moneys collected (Matter of Bennett, Daily Eeg. May 24, 1888), or to report upon an attorney's hen upon moneys collected (Brown v. Mayor, 11 Hun, 21 ; Acker- man V. Ackerman, 14 Abb. Pr. 229). It has been intimated that a reference might be directed upon an application for an extra allowance, where the case has not been tried by the judge to whom the application is made (People v. Albany, etc. E. Co., 5 Lans. 25) ; but where the application is made to the same judge who tried the case no reference should be ordered. PART III. . MISCELLANEOUS EEPERBNCES UNDER THE CODE OP CIVIL PROCEDURE CHAPTER I. References to Foreclose Mortgages on Real Estate— Division of Subject. I. References to Heak and Detebmine the Issues, ob to Examine and Report on Interlocutoey Matters. § 1. Practice. II. Repbeences to Compute the Amount Due, and to Take Pboof or THE Allegations of the Complaint. § 2. When Ordered. § 3. Statute. § 4. Computation When Made. § 5. Default at Trial. § 6. Sham Answer. § 7. Infants and Absentees, § 8. Sale in Parcels. § 9. Motion for reference. Form of Notice of Application for Judgnient. Form of Affidavit. § 10. Service. § II. Hearing. g 12. Selection of Referee. § 13. Authority to Act. § 14. Oath. § 15. Notice of Reference. [2151 216 REFERENCES TO FORECLOSE MORTGAGES. § ]6. Computation May be Made by the Court.. §17. Hearing before Referee. § 18. Evidence. § 19. The Report. Form of Report. § 20. Filing and Confirmation. Form of Notice of Motion to Confirm Report and for Judgment. §21. Exceptions. § 22. Judgment. m. References to Sell. § 23. Who Appointed. § 24. Hearing. § 25. Referee must proceed forthwith. § 26. Advertisement. Form of Notice of Sala §27. Adjournments. § 28. The Sale. § 29. The Terms of Sale. Form of Terms of Sale and Memorandum. § 30. The Order of Sale. § 31. Memorandum. § 32. The Referee should endeavor to get full valua. § 33. Re-sale. § 34. Payment. § 35. Report of Sale. Form of Report of Sale. § 36. Confirmation. Form of Order Confirming Report of Sale. § 37. Deficiency Judgment. § 38. Fees. § 39. Taxation. rV. Reference as TO Surplus Money. , § 40. Where Surplus to be Deposited. §41. Claim. Form of Notice of Claim to Surplus. § 42. Practice. Form of Notice of Motion for Reference as to Surplus. Form of Affidavit. §43. Order, §44. Oath. §45. Summons. Form of Underwriting. § 46. Hearing. §47. Extent of the Referee's Power. REFERENCES TO FORECLOSE MORTGAGES. 217 § 48. W arshaling Securities. § 49. Report. § 50. Confirmation. Form of Notice of Motion for Confirmation. § 51. Referee's Pees. ' § 62. Costs. § 53. How to Obtain the Money. Division op Subject. References in actions to foreclose mortgages on real estate may be divided into four classes. I. To hear and determine the issues, or to exam- ine AND report on INTERLOCUTORY MATTERS. II. To COMPUTE THE AMOUNT DUE AND TO TAKE PROOF OF THE ALLEGATIONS IN THE COMPLAINT, ETC. III. To SELL UNDER JUDGMENT OF FORECLOSURE AND SALE. IV. As TO SURPLUS MONEY. I. EeFERENCES TO HEAR AND DETERMINE THE ISSUES, OR TO EXAMINE AND REPORT ON INTERLOCU- TORY 1LA.TTERS. § 1. Practice. — The practice in such references is the same in actions of foreclosure as in other actions [for the rules relating to references to hear and determine ■consult the various stages of the trial discussed from pages 1 to 187 of this work ;for the general rules relat- ing to interlocutory references consult the pages 188 to 198]. The issues may be referred by consent ; biit a compulsory reference cannot be ordered, except when a long account, without difficult questions of law, is involved (Code Civ. Pro. § 1013 ; Barnes v. West, 16 Hun, 68 ; Dane v. Ins. Co., 21 Hun, 259). A comi)ul- sory reference may be ordered to examine and report on interlocutory matters (Camp v. IngersoU, 1 Civ. Pro. 340). 218 REFERENCES TO FORECLOSE MORTGAGES. II. EeFERENCES to COMPUTE THE AMOUNT DUE AN1> TO TAKE PROOF OF THE ALLEGATIONS OF THE COMPLAINT. § 2. When ordered. — When all defendants have been served with the summons, or have appeared, and have made default in pleading, or have answered without denying any material allegation of the complaint, the amount due must be computed, either by the court or by a referee — usually the latter (Eule 60 ; Cram v, Bradford, 4 Abb. Pr. 193 ; Kelly v. Searing, 4 lb. 354 ; Goodyear v. Brooks, 2 Abb. Pr. N. S. 296). Eule 60, Gen. Eules Prac. If, in an action to fore- close a mortgage, the defendant fails to answer within the time allowed for that purpose, or the right of the plaintiff, as stated in the complaint, is admitted by the answer, the plaintiff may have an order i-eferring it to some suitable person as referee, to compute the amount due to the plaintiff, and to such of the defendants as are prior incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged ]3i'emises can be sold in parcels, if the whole amount sec'urcd by the mortgage has not become due. If the defendant is an infant, and has put in a general answer by his guardian, or if any of the defendants are absentees, the order of reference shall also direct the person to whom it is referred to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent, on oath, as to any payments which have been made, and to compute the amount due on the mortgage, preparatory to the appli- cation for judgment of foreclosure and sale. When no answer is put in by the defendant, within the time allowed for that purpose, or any answer denying any material facts of the complaint, the plaintiff, after the cause is in readiness for trial, as to all the defendants, may apply for judgment, at any special term, upon due notice to such of the defendants KEPEREXCES TO FORECLOSE MORTGAGES. 21& as have appeared in the action, and without putting the cause on the calendar. The plaintiff, in such case, when he moves for judg- ment, must show, by affidavit or otherwise, whether any of the defendants who have not appeared are absentees ; and, if so, he must produce the report as to the proof of the facts and circumstances stated in the complaint, and of the examination of the plaintiff or his agent, on oath, as to any payments which have been made. And in all foreclosure cases the plaintiff, when he moves for judgment, must show by affidavit, or by the certificate of the clerk of the county in which the mortgaged premises are situated, that a notice of the pendency of the action, containing the names of the parties thereto, the object of the action, and a description of the property in that county affected thereby, the date of the mortgage, and the parties thereto, and the time and place of recording the same, has been filed at least twenty days before such appli- cation for judgment, and at or after the time of filing the complaint, as required by law. § 3. Statute. — The statutory authority for this refer- ence, independent of the rule, is found in either section 1015 or section 1215, of the Code (Exchange Fire Ins. Co. V. Early, 4 Abb. IST. C. 78 ; McGowan v. Newman, Id. 80.) Eule 60 was designed to meet cases in which the plaintiff's rights were admitted, but issues had arisen among the defendants. In such a case, under Eule 60, plaintiff can sell the premises and receive his money without waiting for the defendants' rights to be adjusted. If an issue has been raised against the plaintiff, Eule 60 would not apply, but the computation would still have to be made, and proof taken as to the other mat- ters, and substantially the same practice would pre- vail in the one case as in the other (Code, § 1216; ■220 REFERENCES TO FORECLOSE MORTGAGES. ;Stuyvesant v. Browning, 33 N. Y. Super. [J. & S.] 203 ; and cases cited in next section.) § 4. Computation, when made. — If an issue of fact has been raised, it is customary to have the computation made at the trial; but not essential (Hill v. McEeynolds, 30 Barb. 488; Harris v. Fly, 7 Paige, 421); and the ref- ■erence to compute may precede the trial of the issues {Corning v. Baxter, 6 Paige, 178), or may follow it (Gregory v. Campbell, 16 Hovr. Pr. 417). § 6. Default at trial. — If an issue has been raised and the defendant suffers default at the trial, such issue must be disposed of in the regular way, and as to such defendant a reference to compute, without an inquest, is improper (Exchange Fire Ins. Co. f. Early, 4. Abb. N. C. 78). § 6. Sham answer. — If an answer raises an issue against the plaintiff, even if it be sham or frivolous, it must be disposed of by trial or motion, and not under Eule 60. § 7. Infants and absentees. — If any defendant is an infant who has put in a general answer by his guard- ian, or is an absentee, the plaintiff must prove the alle- gations of his complaint and the am omit due, by the oath of the plaintiff or his agent (Code, § 1216; Rule 60); and it is better to do this if there be an infant defendant, even though the guardian interposes no answer (Wolcott v. Weaver, 3 How. Pr. 159). § 8. Sale in parcels. — If a portion of the mortgage ■debt is not due, the referee must also exanjine and report whether the premises can be sold in parcels without detriment (Rule 60; Everitt v. Huffman, 1 Paige, 648). § 9. Motion for the reference. — A reference to compute the amount due being the proper remedy as above REFERENCES TO FORECLOSE MORTGACJES. 221 shown, the plaintiff should move for the order of refer- ence at special term, following the language of the Code, section 1216, and Eule 60. The motion should be made on papers showing the- nature of the action; the service of the summons upon, or appearance of, each defendant; the default; whether any defendant is an infant or an absentee; and the fihng of a lis pendens (Rule 60 ; Code, § 1216 ; Anony- mous 3 How. Pr. 158). Form of uotice of application for judgment Title of the case. Sir: Tou will please take notice that upon all the proceed- ings in this action and upon the annexed affidavit, a motion will be made before this court, at a special term thereof,, to be held at Chambers, in the County Court Rouse, New Tork City, on , at eleven o'clock, A. M., for an order referring it to some suitable person, as referee, to compute the amount due the plaintiff upon the bond and mortgage set forth in the complaint [and to commds the aTnount due to such of the defendants as are frior incum- hrancers of the mortgaged ]premises.'\ \If tJiere be an infant or absentee defendant, addi\ And' also to take proof of the facts and circumstances stated in the complaint, and to examine the plaintiff or his agent or attor- ney, under oath, respecting any payments to the plaintiff,, or to any one for his use, on account of his demand. \lf the whole amount is not yet due, add.'\ And also to examine and report whether the mortgaged premises can be sold in parcels. .A.nd also that upon the filing of the said referee's report, and without further notice, the plaintiff have judgment of foreclosure and sale with costs, and an extra allowance of two and one-half per cent, on the amount found due, not exceeding two hundred dollars [_as to this last sentence, see post, section 20]. 222 REFERENCES TO FORECLOSE MORTGAGES. And that plaintiff have such other and further relief as may be proper. Dated, etc. Yours, etc., A. B., plaintiff's attorney. To C. D., Esq., defendant's attorney. Form of affidavit. Title of the case. City and County of New York, ss.: A. B., being duly sworii, says that he is attorney for the plaintiff in this action. That this action is brought for the foreclosure of a mort- gage on certain real estate in this county ; that the mortgage is [describe it and show whether it is all dice.] That none of the defendants are absentees or infants [or €is the case may he.] That no answer or demurrer to the complaint has been received from any defendant [if an infant defendant has served a general answer hy his guardian, or if the issue raised hy an answer has been tried and determined in plaintiff^s favor, it should he so stated here.] That on , at the time of filing the complaint herein, deponent filed in the office of the clerk of this <50unty, where the mortgaged premises are situated, a notice of the pendency of the action, etc. [in the language of Bute 60.] Sworn, etc. The affidavits of service and other papers should be annexed. § 10. Service. — The moving papers , should be served at least eight days before the return day of the motion upon each defendant who has appeared (Code, § 1219). § 11. Hearing.— A defendant who has appeared is entitled to oppose the motion, either by controverting plaintiff's evidence, or by showing the moving paper's REFERENCES TO FORECLOSE MORTGAGES. 223 to be insufficieut. If the motion be granted, either by default or after a hearing, the plaintiff should enter an order of reference in the language of his notice of motion and of the decision, and should recite all the jurisdictional facts. § 12. Selection of referee. — The referee is selected by the court, and must conform to the usual requirements (Eules 61, 80). The usual practice is to hand up at the hearing of the motion, a proposed order, leaving blanks for the names of the referee and of the newspapers, if there is any advertising to be done. § 13. Authority to act. — The order is the referee's authority to act and he should proceed in strict accord- ance with it (McCrackan v. Valentine's Executors, 9 1^. Y. 42). § 14. Oath. — The referee should in all cases take the usual oath (Code, § 1016, ante, page 61 ; Exchange Fire Ins. Co. v. Early, 4 Abb. N. C. 78) ; though if his only duty is to compute the amount due it may not be essential (McGowan v. Newman, lb. 80). § 15. Notice of reference. — The plaintiff should serve on each defendant who has appeared a summons to attend before the referee on a day at least five days ahead, with an underwriting stating briefly the object of the reference. The summons must be signed by the referee (Kuapp v. Burnham, 11 Paige, 330 ; Cham- berlain V. Derapsey, 36 N. Y. 144). For form of sum- mons, see page 191. § 16. Computation may be made by court. — If there be need of haste the reference to compute may perhaps be dispensed with (the language of Eule 60 is permis- sive not mandatory) ; the plaintiff may apply for judg- ment to the court, and the court can itself compute the amount due (Kelly v. Searing, 4 Abb. Pr. 354). 224 REFERENCES TO FORECLOSE MORTGAGES. § 17. Hearing before referee.— Upon the appointed day the referee should proceed to take testimony. Defendants who have appeared and made default are entitled to be heard in computing the interest on the amount due ; also upon the question of a sale in par- cels or otherwise, and upon the order in which the par- cels shall be sold, if they are owned by different persons. But they cannot, on their own behalf, reduce the principal of the mortgage by showing payments for by the default, they have admitted the full amount to be due. If there are infants or absentees, the plaintiff or his agent should be examined under oath as to payments, and must also prove all the other allegations of the complaint to the satisfaction of the referee. Defend- ants who have appeared and made default would have no part therein except as amid curiae. § 18. Evidence. — Strict legal proof of these matters should be required (Wolcott v. Weaver, 3 How. Pr. 159). ' The execution of the bond and mortgage should be proved by the subscribing witness or by the certificates of acknowledgment (Wolcott v. Weaver, supra). The recital in the mortgage of the execution of the bond is sufficient proof of that fact (Cooper v. JSTew- land, lY Abb. Pr. 3i2). If the plaintiff be a corporation the referee should examine its officers as to payments (Ontario Bank V. Strong, 2 Paige, 301). In case portions of the mortgaged premises have been sold he should take proof of the equities of such owners, in order that such portions may be sold in the inverse order of alienation (Bard v. Steele, 3 Ho^v. Pr. 110). Compound interest is not allowed (State v, Jackson, 1 Johns. Ch. 13). § 19. The Report.— The report of the referee should conform to the order under which he acts ; if he reports REFERENCES TO FORECLOSE MORTGAGES. 225 merely the amount due to plaintiff, or to prior lienors- who are defendants, he should state his conclusions and the amount found due ; he need not annex the minutes of the testimony given before him, but should annex an abstract of the documentary evidence (Eule 30 [ante, p. 194] ; Security Fire Ins. Co. v. Martin, 15 Abb. Pr. 479). If, in addition, he was ordered to examine and report on the other facts above mentioned, he should annex to his report the minutes of the testimony, signed by the witnesses (Eule 30 ; Anonymous, Clarke, 424 ; Wolcott V. Weaver, 3 How. Pr. 159). If he report upon the advisability of a sale in parcels, he should state the reasons for his conclusions (Everett v. Hoff- man, 1 Paige, 648, Ontario Bank v. Strong, 2 Paige, 301). On this point the report is not conclusive on the court (Gregory v. Campbell, 16 How. Pr. 417). Form, of Beport. Title. To the supreme court of the State of New York : In pursuance of an order entered in this action on by which it was referred to me as referee to, etc. \iake m language of order]. I, the referee named in said order, do report that I caused due notice of the hearing before me to be served on and , the defendants, who have appeared herein, and I was attended on said Iiearing by , as attorney for defendant . That before proceeding with the heai-ing I took the usual oath, whicli is hereto annexed. And I do further report that I have computed the amount due the plaintiff upon the bond and mortgage set forth in the complaint, and I find that there is due him, as principal and interest thereon, the sum of dollars, as appears from Schedule A hereto annexed. [If the wJiole amount is not yet due state how much is now due, and how much is to become due.] [If there are infant or absentee defendants, add.] 15 226 REFERENCES TO FORECLOSE MORTGAGES. And I do further report that I have taken proof of the facts and circumstances stated in the complaint and have examined the plaintiff [w his agent] under oath as to any payments which have been made, and that I am of opinion, and accordingly report, that the facts and circumstances stated in said complkint are true, and that no payments have been made, except such as are duly credited iu the said com- plaint, all of which appears from the minutes of the testi- mony taken by me, which are hereto annexed. Dated, etc. {^SignatureJ] The schedule should contain an abstract of the docu- mentary evidence, and a statement of the principal and interest. § 20. Filing and confirmation. — Upon filing the report of the referee the practice is to confirm the report and to enter judgment ex parte, pursuant to a provision to that effect in the order of reference. It is question- able whether this practice is correct. The law seems to entitle the defendant, who has appeared and has defaulted in his pleading, to a notice of the motion for the reference and to a summons to attend the referee ; these, as necessary conditions to enable him to appear and be heard before the referee. Now we cannot assume that the law intends to lead a defendant thus far and then compel him to stop ; to allow him to present his rights before the referee, but to prevent him from pointing out the en-or if he thinks his rights have been disregarded. The report is not final ; it must be confirmed before being acted on. But what necessity is there for confirmation, except to protect the defendant's rights ; and if he is absent, how can he be protected ? Assuming then that the report must be confirmed on notice to the defendant, it follows that such confirma- tion should be made by an eight days' notice of motion, REFERENCES TO FORECLOSE MORTGAGES. 227 because this reference is excepted from the operation of Eule 30. Now the plaintiff can only obtain a judgment of foreclosure and sale upon a notice of motion of eight days, pursuant to section 1219 of the Code. The motion for an order of reference is not a motion for judgment, but is designed to take proof of certain facts which must be proved before judgment can be rendered. This a priori view is confirmed by evidence. The -Chancery practice was to confirm the master's report on notice (Wetmore v. Winans, 8 Paige, 370). The language of Eule 60 shows that the law intends an eight day notice of motion for judgment after the fijing of the report, "the plaintiff . . . when he moves for judgment . . . must produce the report ;" and " to compute the amount due preparatory to the application for judgment." This was the practice in Swarthout v. Curtis, 4 N. T. 415, and National Bank v. Hibbard, 45 How. Pr. 280. Thei-efore it would seem that the proper course is to move for the confirmation of the report and for judgment of foreclosure at the same time and in the same notice, and upon the decision of the motion, to enter a judgment confirming the report and granting the rehef asked. Form of notice of motion to confirm report and for judgment. '{Titte.] Sir: You will please take notice that upon all the proceed- ings in this action, and upon the report of , Referee, :filed in the oflBce of the clerk of this Court on , a motion will be made, etc., for an order confirming the said report of the referee and granting to this plaintiff a final judgment of foreclosui'e and sale as demanded in his com- plaint, and for such other relief as may be proper. Dated. Yours, etc. 228 REFERENCES TO FORECLOSE MORTGAGES. § 21. Exceptions.— If any defendant be dissatisfied he- must file and serve exceptions to the report, pointing out the objectionable features. Upon a motion to confirm, the report cannot be- sustained by affidavits; it must stand on its own bottom (Koch v. PurceU, 45 Super. [J. & S.J 162) § 22. Judgment.— If the motion be granted, either by default or after a hearing, the plaintiff enters a judg- ment of foreclosure and sale. . The judgment should describe the property, and should direct as to the time, place and manner of the sale ; if the sale be not made by the sheriff, it should appoint a referee to seU, should give directions as to the disposition of the proceeds (Eule 61; Code, § 1242), and should direct judgment for the deficiency, if any (Code, § 1627; McCarthy v. Graham, 8 Paige, 480). Eule 61, Gen. Eides Prac. In every judgment for the sale of mortgaged premises, the description and particular boundaries of the property to be sold, so far at least as the same can be ascertained from the mort- gage, shall be inserted. And, unless otherwise specially ordered by the court, the judgment shall direct that the mortgaged premises, or so much thereof as may be sufficient to discharge the mortgage debt, the expenses of the sale, and the costs of the action, as provided by sections 1626 and 1676 of the Code, and which may be sold separately without material injury to the parties interested, be sold by or under the direc- tion of the sheriff of the county, or a referee, and that the plaintiff, or any other party, may becorne a purchaser on such sale ; that the sheriff or referee . execute a deed to the purchaser ; that out of the pro- ceeds of the sale, unless otherwise directed, he pay the expenses of the sale as provided in section 1676 aforesaid, and that he pay to the plaintiff, or his attorney, the amount of his debt, interest and costs, or so much as the purchase money wiU pay of the same, and that he take the receipt of the plaintiff, or REFERENCES TO FORECLOSE MORTGAGES. 229 liis attorney, for the amount so paid, and file the same with his report of sale ; and that the purchaser at such sale be let into possession of the premises on produc- tion of the deed. - All surplus moneys arising from the sale of mort- gaged premises, under any judgment, shall be paid by the sheriff or referee making the sale, within five days ^fter the same shall be received and be ascertainable, in the city of New York, to the chamberlain of the said city, and in other counties to the treasurer thereof, unless otherwise specially directed, subject to the further order of the court ; and every judgment in foreclosure shall contain such directions, except where other provisions are specially made by the court. No report of sale shall be filed or confirmed, unless accompanied with a proper voucher for the surplus moneys, and showing that they have been paid over, ■deposited or disposed of in pursuance of the judgment. The referee to be appointed in foreclosure cases, to compute the amount due, or to sell mortgaged premi- ses, shall be selected by the court, and the court shall uot appoint as such referee a person nominated by the party to the action or his counsel. in. Eeperences to Sell. § 23. Who appointed, — The referee to sell is usually the same person as the referee to compute. The court may require him to give security (Code, § 1243) ; but this is not usual. In the Second Department he must be a xesident of the county in which the property is situa- ted (Special rule, Dutchess county). In Kings county "the law requires a sale in foreclosure to be conducted by the sheriff, unless he is a party (Laws of 1876, c. 439) ; but a sale by a referee in violation of this law is merely an irregularity which does not affect the title {Dickinson v. Dickey, M Hun, 617 ; 76 N. Y. 602). § 24. Hearing.— It may be necessary to take further proof as to the equities of the defendants, to determine 230 REFERENCES TO FORECLOSE MORTGAGES. the order in. which the parcels should be sold ; if so, there should be a provision to that effect in the judg- ment ; the sale should always be by a referee (KJaicker- backer v. Eggleston, 3 How. Pr. 130) ; and the referee should take such proofs accordingly (Eathbone v, Clark, 9 Paige, 648 ; Snyder v. Stafford, 11 Paige, 71). Such hearing should be brought on on the usual notice to all defendants who have appeared, and the referee's decision (which need not be filed before sale) can be reviewed by the court on motion (N. T. Life Ins. &. Trust Co. V. minor, 1 Barb. Ch. 353). § 25. Referee must proceed forthwith. — The referee should carry out the judgment forthwith unless aH parties consent to delay. Upon the appUcation of any party to the suit the court may direct the referee to proceed with the sale (Kelly v. Israel, 11 Paige, 1-17). § 26. Advertisement.— The referee should advertise the property for sale by a notice of sale (Code, § 1678). Form of uotice of sale. ' [Title.] In pursuance of a judgment of foreclosure and sale roade and entered in the above entitled action on the day of , I, the undersigned, the referee named therein, will sell at public auction at , on the day of , at o'clock M., by , auctioneer, the premises men- tioned in said judgment, as follows [Take in description] : Dated, etc. A. B., referee. 0. D., plaintifiE's attorney. It need not set forth the terms of sale or the order in which the parcels are to be sold (Huffman v. Burke, 21 Hun, 580). The notice should be advertised as follows : If the property be situated in either New York city or Brook- REFERENCES TO FORECLOSE MORTGAGES. 231 lyn, the notice must be published at least twice a week for the three weeks immediately preceding the sale, in two newspapers • published in such city ; in other cities, in which a newspaper is published, it must be so advertised in one such paper. In New York city one of the papers must be the newspaper designated for such publication by certain justices of the courts (Laws of 1814:, c. 666) ; but other- wise the papers are designated by the judge who signs the judgment. In the country the notice of sale must be posted at least forty-two days before the sale in three public places in the town where the property is situated, and also in the town where the sale is to take place, if these are different ; the notice must also be published at least once in each of the six weeks immediately pre- ceding the sale in a newspaper of the county, or if there be none, then in such other newspaper as may be designated by the court (Code, §§ 1678, 1-134 ; Eule 62 ; Laws of 1881, c. 133). § 27. Adjournments. — The referee may adjourn the sale for proper reasons (Kelly v. Israel, 11 Paige, 117) ; an adjournment should be to a day certain, but a party who has rendered this impossible cannot take advan- tage of the irregularity (La Farge v. Van Wagenen, 11 How. Pr. 51) ; the notice of adjournment should be ap- pended to the oj iginal notice and the whole advertised ; the practice is to advertise the adjournment once a week until the sale, but the statute is silent on this point (Code, § 1678). § 28. The sale. — At the appointed time and plaie the referee must attend in person and expose the property for sale ; he cannot depute his authority, bub may era- ploy an auctioneer (Heyer v. Deaves,2 Johns. Ch. 151). In conducting the sale he should act strictly in accordance with the judgment, and by deviating from 232 EEFEEENCES TO FORECLOSE MORTGAGES. \ it he may become personally liable (People ex rel. Day V. Bergen,53 K Y. 40i). At the sale it is the referee's duty : " 1st, To an- nounce the terms of the sale, if they are not contained in the notice of sale. " 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 high- est bidder, to require him to sign a memorandum of the sale, containing an agreement to complete the same (1 Barb. Ch. Pr. 528). " ith. If at the time appointed for the sale there are no bidders, or if from the numbers in attendance, or other sufficient cause, the ofScer is satisfied that a fair price cannot be obtained, it is his duty to postpone the sale, and not to sacrifice unnecessarily the property (Bicknell v. Byrnes, 23 How. Pr. 486). § 29. The terms of sale. — The terms of sale should set forth the prior encumbrances, and whether they are to be allowed out of the purchase money ; the time allowed to close the title ; the amount of cash to be paid at the auction; the order of sale, if the land is to sold in parcels ; and any special provision bearing on the sale (Code, § 1678.) Form of terms of sale and memorandum. Title of the case. The premises described in the annexed advertisement of sale will be sold under the direction of upon the fol- lowing terms : Dated New York, 18 . 1st. Ten per cent, of the purchase money of said prem- ises will be required to be paid to the said at the time REFERENCES TO FORECLOSE MORTGAGES. 233 and place of sale, and for which the referee's receipt will be given. 2nd. The residue of said purchase money will be required to be paid to the said at his ofHce on the day ■of when the said referee's deed will be ready for ■delivery. 3d. The referee is not required to send any notice to the purchaser ; and if he neglects to call at the time and place dbove specified, to receive his deed, he will be charged with interest thereafter on the whole amount of his purcliase, ■unless the referee shall deem it proper to extend the time for the completion of said purchase. ■ith. All taxes, assessments, and other incumbrances, which at the time of sale, are liens or incumbrances upon said premises, will be allowed by tlie referee out of the purchase money ; provided the purchaser shall, previously to the delivery of the deed, produce to the referee proof of such liens and duplicate receipts for the payment thereof. 5th. The purchaser of said premises, or any portion thereof, will at the time and place of sale, sign a memoran- dum of his purchase, and pay in addition to the purchase money, the auctioneer's fee of dollars, for each parcel separately sold. 6th. The biddings will be kept open after the property is struck down, and in case any purchaser shall fail to com- 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 these same terms of sale, without application to the Court, unless the plaintiff's attorney shall elect to make such application ; and such pur chaser will be held liable for any deficiency there may be between the sum for which said premises shall be struck down upon the sale, and that for which they may be pur- ■chased on the re-sale, and also any costs or expenses occur- ring on such re-sule. 7th. \If the property is to he sold subject to an incum- brance it should he set out here.] 234 REFERENCES TO FORECLOSE MORTGAGES. Memoraudnm of sale. I have this day of 18 , purchased the premises described in the above annexed printed advertisement of sale, for the sain of ^ dollars, and hereby promise and agree to comply with the terms and conditions of sale, of said premises, as above mentioned and set forth. Dated 18 . § 30. The order of sale. — In selling land in parcels the order in which they wiU be sold need not be published prior to the sale (Hoffman v. Burke, 21 Hun, 580). § 31. Memorandum. — The memorandum of the sale is. required by the Statute of Frauds ; it is sufficient if it be signed by the referee only (Bicknell v. Byrnes, 25 How. Pr. 486); it is usually appended to the terms of sale. § 32. The referee should endeavor to get full value. — The referee should use discretion in conducting the sale, and should not allow the property to be sacrificed by chance circumstances if he can avoid it (May v. May, 11 Paige, 201 ; Baring v. Moore, 5 "Paige, 48 ; Bicknell V. Byrnes, 23 How. Pr. 4bG ; Lents v. Craig, 13 How. Pr. 73 ; American Ins. Co. v. Oakley, 9 Paige, 3.i9). § 33. Ee-sale. — In case a second sale becomes neces- sary, the referee should at once offer the property again for sale, or adjourn the sale to a day certain. If no adjournment is taken, the sale must be re-advertised as in the first instance ; but no order for the re-sale is necessary (Bicknell v. Byrnes, supra). § 34. Payment. — The referee should receive the pur- chase money and deliver a deed of the premises ; he should pay the expenses of the reference, including REFERENCES TO FORECLOSE MORTGAGES. 235 his own charges, iand then the other charges in the order set forth in the judgment. If there be a surplus he should, within five days after its receipt, pay it over to the County Treasurer, or, in New York City, to the City Chamberlain (Eule 61). § 35. Report of sale.— The referee should then make his report of sale, showing the advertising of the sale, the proceedings, if any, to ascertain the defendants' rights, the time, place, and manner of the sale, the name of the purchaser, the amount received, the delivery of the deed, and the disposition of the pro- ceeds, with the vouchers therefor. Form of report of sale. Title of the case. To the supreme court of the State of New York. I, the referee named in the judgment of foreclosure and sale entered in this action on , do respectfully report as follows : That I caused a notice of the sale of the mortgaged premises to be duly advertised, by {show the manner of the advertising] as appears by the affidavits of hereto annexed. That pursuant to said notice and to the judgment herein, and to the law and the practice of this court, the mortgaged premises were sold at public auction under my direction and superintendence on at in the City of ,. County of ; and that on such sale became the purchaser of said premises for the sum of dollars, that being the highest sum bidden for the same. [i^ the premises were sold in separate parcels, set out the manner of the sale, the order in which tJie parcels were sold, and the amount f reduced hy each]. That I have received from said the sum of dollars, being the amount ' bid by him as aforesaid less 236 REFERENCES TO FORECLOSE MORTGAGES. {whatever may have heen allowed for incumbrances], and that I have executed and delivered to him a deed of con- veyance of the said premises. And I do further report that I have paid out and disposed of said moneys as follows : I have retained the sum of dollars for my charges, •and the expenses of said sale. I have paid to , the attorney for the plaintiff, the sum of dollars awarded to him by the judgment, for his ■costs, allowance, and disbursements herein, and I have also paid him the further sum of dollars, being the amount [or on account of the amount] due to the plaintiff for prin- ■cipal and interest upon his said mortgage. And I have deposited the surplus of said moneys, remain- ing after the foregoing deductions and payments, being tlie sum of dollars, with the [County Treasurer or ■Chamberlain] to the credit of this action. And for all the foregoing payments I obtained receipts, ■which are hereunto annexed. [7« case of deficiency.] And I do further report that the proceeds of said sale ■were insufficient to pay the amount due to the plaintiff, and that the amount of the deficiency is the sum of dollars, with interest thereon from the date of this report. Dated, etc. [Signature.'^ § 36. Confirmation. — The report of sale must new be confirmed ; this is done under Eule 30 by filing the report and serving notice thereof upon the defendants ; if no exceptions are filed within eight days, the report is confirmed ex parte. REFERENCES TO FORECLOSE MORTGAGES. 23T Form of order confirming report of sale. Present, Hon. Justice. At a special term, etc. Title of the case. Upon reading and filing the report of , Esq., the- referee appointed herein to sell the mortgaged premises^ which report was filed in the clerk's office of this County on , and the proof of service of notice of the filing- thereof on each of the defendants who have appeared in this action, and eight days having elapsed since snch service^ and no exceptions to said report having been filed, now on motion of , attorney for the plaintiff. It is ordered that said i-eport be absolute, and that it. stand as in all things confirmed. § 37. Deficiency judgment. — If the report show a defi- ciency the usual practice in New York city is to docket, it as a judgment against the defendant, without wait- ing for confirmation, and it would seem that this prac- tice is regular, for these reasons : The judgment of foreclosure is final (Code, § 1627;, Morris v. Morange, 38 N. Y. 172), and as such it adjudges that the defendant pay any deficiency that may remain. It is true that the deficiency is uncertain in amount, but the judgment provides a means for ascertaining the amount by the report of the referee. Now, as the duties of the referee in ascertaining the deficiency are not judicial but ministerial (People ex rel. Day v. Bergen, 53 N. Y. 404), it would seem that it is not necessary to review them, but that as soon aa the deficiency is ascertained by the report the judg- ment would be complete and that the law contemplates no application to the court for this purpose, after the final judgment of foreclosure and sale. ^ This practice is approved in Walbridge v. James, 4 Hun, 793, to the effect that such a report must be 238 REFERENCES TO FORECLOSE MORTGAGES. corrected by motion and not by appeal. It is analo- gous to the practice of rendering final judgment for ' ' dollars, costs to be taxed by the clerk and inserted herein," in which case judgment is rendered for an uncertain amount and a method provided for making it certain. But on the other hand it may be said, that if it is unnecessary to confirm, why report ? If the report is correct the confirmation is harmless, and if incorrect, is the defendant to be without remedy ? A report is required by statute ; and by the rules its only purpose is to inform the court as to whether the judgment has been duly executed ; the defendants, whose rights are affected are the only ones interested in the matter, and they should be heard before the report of a referee becomes the judgment of a court. See Bache v. Doscher, 41 Superior Ct. 150, and cases there cited, showing that the former practice was not to allow an execution for deficiency until eight days after service upon the defendant of notice of the filing of the report. This case was affirmed in 67 N. Y. 429 {See also BickneU v. Byrnes, 23 How. Pr. 486; Hanover Fire Ins. Co. v. TomUnson, 3 Hun, 630 ; Gregory v. CampbeU, 16 How. Pr. 417). Bache v. Doscher, was followed in a case in the 1st District (Special Term, Supreme Court, March, IS So), and a judgment for deficiency, returned execution, and an order in supplementary proceedings were vacated and set aside because of this irregularity. It would seem, therefore, to be safer, before docketinrj the judgment, to have the report confirmed. § 38. Fees.— The fees of a referee to sell in foreclos- ure are determined by the following acts and decisions : Laws of 1869, c. 569 ; Laws of 1874, c. 192 ; Laws of 1876, c. 439 ; Schermerhorn v. Prouty, 80 N. Y. 317 ; Code, §§ 3297, 3307, subds. 7, 11 & 3308 ; 2 E. S.' 93, e. 6, tit. 3, art. 2, § 68 ; as amended by Laws of REFEBENCES TO FORECLOSE MORTGAGES. 239 1863, c. 362, § 8 ; Lockwood v. Fox, 61 How. Pr. 522 ; Guinivan v. Carroll, 4 Month. Law Bull. 6. The above authorities establish the following sched- ule of fees in New York City and Brooklyn: Eeceiving order and advertising, or posting, notice of sale, $10.00 Attending sale, 10.00 Each adjournment, (not more than three,) . 3.00 Making report of sale, 5.00 Drawing each deed, . . . . . 5.00 Paying over surplus money, . . . . 3.00 And in the proper cases (Code, § 329^) to certain commissions. In the country the referee's fees are 3 per cent, on the first $250, and 2i per cent, on the balance of the amount realized, and also some small fees for preparing papers and for other services. But iu no case can the entire compensation of the referee (in city or country) exceed $50 (Ward v. James, 8 Hun, 526), even by agreement with the plaintiff's attorney (Brady v. Kingsland, 5 Civ. Pro. 413). The referee is also allowed his disbursements for auctioneer, searches, advertising, etc., etc. See Phillips v. Walker, 4 Hun, 645. § 39. Taxation. — The referee's fees, if disputed, should be taxed by the clerk (Ward v. James, supra). IV. Eeference as to surplus money. § 40. Where surplus to be deposited. — If there be a sur- plus, it should be deposited with the county treasurer or the New York City Chamberlain (Eule 61 ; Code, § 1633). § 41. Claim. — Anyone entitled to the surplus may file a claim to it as provided by Eule 64. 240 EEPERESrCES TO FORECLOSE MORTGAGES. Eule 64, G-en. Eules Prac. On filing the report of the sale, any party to the suit, or any person who had a lien on the mortgaged premises at the time of the sale, upon fihng with the clerk where the report of sale is filed a notice, stating that he is entitled to such surplus moneys or some part thereof, and the nature and extent of his claim, may have an order of reference, to ascertain and report the amount due to him, or to any other person, which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon ; to the end that, on the coming in and confirmation of the report on such reference, such further order may be made for the distribution of such surplus moneys as may be just. The referee shall, in all cases, be selected by the court. The owner of the equity of redemption, and every party who ap- peared in the cause, or who shall have filed such notice with the clerk, previous to the entry of the order of reference, shall be entitled to service of a notice of the application for the reference, and to attendon such reference, and to the usual notices of subsequent pro- ceedings relative to such surplus. But if such claimant or such owner has not appeared, or made his claim by an attorney of this court, the notice may be served by putting the same into the post office, directed to the claimant at his place of residence, as stated in the notice of his claim, and upon the owner in such manner as the court may direct. All official searches for con- veyances or incumbrances, made in the progress of the cause, shall be filed with the judgment roll, and notice of the hearing shall be given to any person having or appearing to have an unsatisfied lien on the moneys in such mamier as the court shall direct ; and the party moving for the reference shall show, by affidavit, what unsatisfied liens appear by such official searches, and whether any, and what other unsatisfied liens are known to him to exist. KEFERENCES TO FORECLOSE MORTGAGES. 241 Form of notice of claim to snrplns. Title of the case. Sir : Tou will please take notice that C. D., who resides at 5 is entitled to the surplus moneys, or some part thereof, arising from the sale of the mortgaged premises under the judgment of foreclosure and sale entered in this action. The nature and extent of the claim of the said C. D., is as follows [state nature of lien]. Dated. C. D., claimant, bv A. B., his attorney, § 42. Practice. — The moving party — who is usually, but not necessarily, he whose claim was first filed — should move" for a reference to examine and report as to the claims. The motion should be made on an affidavit setting forth the surplus, and the claims filed, and the nature of the claimant's lien. The notice with the affidavit should be served on the owner of the equity of redemption, on each defendant who has appeared in the action, and on each person who has filed a notice of claim to the surplus (Rule 64). Form of notice of motion for reference as to surplus. Title of ease. Gentlemen : Tou will please take notice that upon all the proceedings in this action and upon the annexed affidavit of A. B., the claimant C. D. will apply to this court at a special term thereof to be held at , on at o'clock M., for an order of reference to ascertain and report the amount due to said C. D., or to any other person, which is a lien upon such surplus moneys, and to ascertain the priorities of 16 242 REFERENCES TO FORECLOSE MORTGAGES. the several liens thereon, and for such other and further relief as may be proper. Dated, etc. Yours, etc., A. B., Attorney for claimant, 0. D, To , etc. [^As provided hy Bule 64.] Form of affidavit iTitle.l County of , ss.: A. B., being duly sworn says he is attorney for 0. D., who is a defendant in this action [or otherwise as the case may le.'\ That the report of sale of , Esq., who, by the judg- ment herein was appointed referee to sell the mortgaged premises, was filed in the.oflice of the clerk of this court on , and that in such report it appears that after satisfy- ing the claims of the plaintiff there remains a surplus of dollars, which has been deposited to the credit of this action with the {county treasurer or city chamberlain], and that said C. D. has filed with the clerk of this court a notice stating that he is entitled to such surplus money or some part thereof, and the nature and extent of said lien. That deponent has examined all the oflBcial searches made in the progress of this cause, and filed with the judgment roll, and that the following are the only unsatisfied liens that appear by such official searches [insert theni], and that no other unsatisfied liens are known to deponent to exist. Sworn to, etc. A. B. § 43. Order. — The motion having been granted, the claimant shotild enter an order of reference in the usual form, following the language of Rule 64. § 44. Oath. — The referee should take the usual oath. ' § 45. Summons. — A five days' summons to attend the EEFEEENCES TO FORECLOSE MORTGAGES. 243 referee should be served upon each person entitled to notice, as provided by Eule 64 (Hulbert v. McKay, 8 Paige, 651). The summons is in the, usual form with an under- writing stating the object of the reference. Form of underwriting. To ascertain the amount due to C. D., or to any other person, vphich is a hen upon the surplus moneys in this action, and to ascertain the priorities of the several liens thereon. § 46. Hearing. — Upon the reference the moving party should prove the facts on which his claim is based, to wit : the report of sale, the existence of the surplus, the parties entitled to notice of the reference, the service of notice on them [unless they appear], whether there are any liens not shown on the record, and must prove his own hen, and the amount actually due on it. The other claimants prove their liens in hke manner. Anyone claiming a lien, though not summoned, .may appear before the referee and prove it (Eule 64 ; Hulbert v. McKay, 8 Paige, 651). § 47. Extent of the referee's power. — It was formerly ■considered that a master or referee could only take proof of admitted liens and determine their priority, and that any dispute of the validity of a lien must be settled in a separate action (Union Dime Savings Bank V. Osley, 4 Hun, 657 ; Husied v. Dakin, 17 Abb. Pr. 137, at p. 148). This is now changed ; the referee can take evidence and report on the validity of any lien (e. g., a mortgage claimed to be fraudulent) and settle the entire controversy (Bergen v. Snedeker, 8 Abb. N. C. 50 ; S C, sub. nom. Bergen v. Carman, 79 N. Y. 146 ; Sii REFEEENCES TO FORECLOSE MORTGAGES. reversing 18 Hun, 355 ; Tator i: Adaais, 20 Hun, 131 ',. Miess V. Buckley, 90 N. T. 286 ; Kingsland v. Chet- wood, 39 Hun, 602 ; Mutual Life Ins. Co. v. Bowen, 47 Barb. 618). § 48. Marshaling securities.— In a proper case the referee can marshal the securities so as to compel a creditor to satisfy his claim out of the subject of his exclusive lien (N. Y. Life Ins. Co. v. Vanderbilt, 12 Abb. Pr. 458). § 49. Report. — The referee should now file his report ;. it should set out his appointment, that the proper parties were duly summoned, the appearance, the pro- ceedings before him, his findings of fact, and his con- clusions. He should annex the minutes of the testimony^ signed by the witnesses (Eule 80). § 50. Confirmation. — The order for the payment of money to a successful claimant can only be made after an eight days' notice of motion (Eule 70), which brings the whole matter before the court. In order there- fore to save the trouble and delay of two motions, it i& usual to serve on the parties who have appeared, a notice of the fiUng of the report and of a motion for its confirmation and for the payment of the money ; it would not be necessary to file exceptions, as the whole question would come up on the motion (Martin V. Hodges, 45 Hun, 38). If only one claimant appears before the referee he- can have an order of confirmation and for payment ex parte (Hulbert v. McKay, supra). On the motion the report is treated as a special ver- dict for the information of the Court (Kirby v. Fitz- patrick, 18 N. Y. 484), and the Court, in view of the evidence, may confirm it, send it back, or set it aside (Mutual Life Ins. Co. v. Salem, 3 Hun, 117). It cannot make new findings of fact (Mutual Life REFERENCES TO FORECLOSE MORTGAGES. 245 Ins. Co. V. Anthony, 23 Week. Dig. 427), but it may reject the conclusions of law in the report, draw its own conclusions from the findings, and order accordingly. Boi-m of notice of motion for couflrmation. Tiile of the case. Gentlemen : Tou will please take notice that the report of A. B., Esq., the referee appointed herein ; to ascertain and report &s to the amount due to the various claimants to the surplus money in this action, was filed in the office of the Clerk of this Court on the day of And that upon the said referee's report, the claimant, C. D., will apply to this court at a special term, etc., for an order confirming said report and directing the [cou7ity treasurer or city chamierlain] to pay to C. D., or to his attorney, out of said surplus mone3's the sum of dollars with interest thereon from the date of the report, together -with the costs of these proceedings ; and for such other and further relief as may be proper. Dated, etc. Tours, etc., CD. § 51. Eeferee's fees in references as to surplus. — The referee is entitled to the usual fee of six dollars a day. § 52. Costs. — This being a reference on a motion under section 1015 of the Code, only motion costs are a,Uowed out of the fund (McDermott v. Hennesy, 9 Hun, 59 ; Welhngton v. Ulster County Ice Co., 5 Week. Dig. 104 ; but compare ElweU v. Eobbins, 43 How. Pr. 108 ; N. Y. Life Ins. and Trust Co. v. Vanderbilt, 12 Abb. Pr. 458 ; Borland v. Alleond, 8 Daly, 126). But an unsuccessful claimant may be charged with -costs (Lawton' v. Sager, 11 Barb. 349 ; Borland v. AUeond, supra). 246 REFERENCES TO FORECLOSE MORTGAGES. The costs should be taxed and inserted in the order directing payment. § 63. How to obtain the money. — Two certified copies of the order should be obtained, and each should be contersigned by the judge by whom the order wa& granted. One copy is to be filed with the county treasurer or city chamberlain, who will then draw his draft on the Trust Company for the amount, and the other is to be filed with the Trust Company upon presenting the draft for payment. REFERENCES IN PARTITION SUITS. 247 CHAPTER II. References in Partition Suits. Division op Subject. L References to Hear and Determine the Issues. § 1. When not Allowed. § 2. Effect of Report. n. Rbfebbmces to Examine and Report. § 3. When Ordered. § 4. Motion for Reference. § 5. Practice. § 6. Evidence. § T. Partial Report. § 8. Report. § 9. Piling and Confirmation. § 10. Motion. § 11. How far Report is Binding on the Court, m. References to Sell. § 12. Interlocutory Judgment. § 13. The Sale. § 14. The Report. § 15. The Sale should not be Consummated before Con- firmation. § 16. Fees. Division of Subject. References in partition suits may be divided into three classes. I. References as in other actions by consent or otherwise, to hear and determine the issues. II. Interlocutory references to take proof of THE RIGHTS OF THE PARTIES. III. REFERENCES TO SELL UNDER A JUDGMENT OF SALE. 248 KEFEEENCES IN PARTITION SUITS. I. Eefeeences to hear and determine the issues. • § 1. When not allowed,— Although this is a suit iu equity, the Code allows any issue of fact raised in it to be tried by a jury (Code, §§ 970, 1544 ; Hewlett v. Wood, 62 N. Y. 75 ; Cassedy v. Wallace, Gl How. Pr. 240). The issues may be referred by consent and would be conducted as in other cases. § 2. Eflfect of report. — The verdict in such a case is treated as a special verdict ; it is conclusive as to the facts found, unless it is set aside; but the court can draw its own conclusions from the facts, and if a ref- erence of the issues by consent is ordered, the report has the same ieffect (Hewlett v. Wood, supra). n. Eeferences to Examine and report. § 3. When ordered. — The court must always ascertain whether the land should be divided or sold. It should also take proof as to the rights of all par- ties when there is a defendant in default, or one who is an infant, or an absentee, or unknown. The practice is to take such proof by a referee, and if there are issues to be tried by a referee on consent, the entire matter would be determined by him in one report (Code, §§ 1545, 1546; Eule 66). § 1546. Where a defendant has made default in a]ipcaring or pleading, or where a party is an infant, the court must ascertain the ■ rights, shares, and interests of the several parties in the property, by a reference or otherwise, before interlocutory judgment is rendered in the action. § 1546. The interlocutory judgment must declare what is the right, share, or interest of each party in the property, as far as the same has been ascertained, and must determine the rights of the parties therein. Where it is found, by the verdict, report, or decision, or where REFERENCES IN PARTITION SUITS. 249 it appears to the court, upon an application for judgment in favor of the plaintifi, that the property, or any part thereof, is so circumstanced that a partition thereof cannot be made without great prejudice to the owners, the interlocutory judgment, except as otherwise expressly prescribed in this article, must direct that the property, or the part thereof which is so circumstanced, be sold at public auction. Other- wise, an interlocutory judgment in favor of the plaintiff, must direct that partition be made between the parties, according to their respect- ive rights, shares, and interests. Eule 66, Gen. Eules Prac. Where the rights and interests of the several parties, as stated in the com- plaint, are not denied or controverted, if any of the defendants are infants or absentees, or unknown, the plaintiff, on an affidavit of the fact, and notice to such of the parties as have appeared, may apply at a special term for an order of reference, to take proof of the plaintiff's title and interest in the premises, and of the several matters set forth in the complaint, and to ascer- tain and report the rights and interests of the several parties in the premises, and an abstract of the convey- ances by which the same are held. Such referee shall, in all cases, be selected by the court. § 4. Motion for reference. — The plaintiff should move for the reference on an eight days' notice to each defendant who has appeared. The motion should be made on pa]pers showing the service of the summons on, or appearance of, all the defendants, and that they are in default, or do not deny the rights of the parties, and whether any defendant is an infant, or an absentee, or unknown. The form of the notice of motion, the affidavit and the order of reference would be substantially similar to those in foreclosure (see page 220). § 5. Practice. — The motion having been granted the reference is brought on as in foreclosure. § 6. Evidence. — The plaintiff should trace back the title to the common source of title of all parties (Ham- 250 REFERENCES IN PARTITION SUITS. iltoii V. Morris, 7 Paige, 39) ; should prove his own in- terest in the premises and the interest of each defend- ant so far as he has set it forth in the complaint (Eule 66), and that everyone having any interest in the premises has been made a party to the suit (Halstead V. Halstead, 55 N. Y. 442). He should also produce evidence from which the referee can determine whether a sale or a division is the more desirable. The referee can pass on the valid- ity of any lien, if it be attacked (Halstead v. Halstead, sv-pra). Each defendant should prove his interest, if this has not been proved by the plaintiff ; aud they must contest any issue arising between themselves not presented by the pleadings. § Y. Partial report. — In case the right to a partition shall have been established and the interests of some parties have been determined but not of others, the referee may make a partial report recommending parti- tion by sale or division as to the interests so determined ; and may from time to time make a further report as the other interests are determined (Code, § 1547). § R. The report. — If the rights of all parties have been settled, the referee makes a report as to all the matters submitted to him. The report should recite the order of reference, the appearances, the proceedings in brief, and should then set forth the findings of facts and con- clusions. The minutes of the testimony taken before the referee should be signed and sworn to by the witnesses and filed with the report (Eule 30) ; it is also well to file with the report the searches for liens against the prop- erty, but this is not necessary if the referee states the substance of them in his report ; and this dispenses with the advertisement for liens under Code, §§ 1561, 1562 (Gardner v. Luke, 12 "Wend. 269 ; followed in Noble V. Cromwell, 27 How. Pr. 289). REFERENCES IN PARTITION SUITS. 251 § 9. Filing and confirmation.— The report should be filed and notice of the filing served on each defendant, who has appeared as required by Eule 30. As the con- firmation of the report is preliminary to an interlocu- tory judgment, and as this must be obtained on notice (Code, § 1219), it is usual to combine the notice of fihng the report with the notice of motion for judgment. § 10. Motion. — The motion for judgment should be made on the referee's report and on any other evidence before the court. Any defendant who is dissatisfied with the report should file his exceptions to it, and bring them up on the argument, otherwise, as to him, the report wiU be confirmed. § 11. How far report is binding on the court. — Upon the motion for judgment the court considers the referee's report as advisory only ; it is in the nature of a special verdict ; the court cannot change its findings of fact, but can draw its own conclusions from them, and ren- der judgment accordingly (Austin v. Aheame, 61 N. Y. 6 ; Walker v. Walker, 3 Abb. N. 0. 12). III. Eeperences to Sell. §12. Interlocutory judgment. — If a sale be directed by the interlocutory judgment, or otherwise, under Code, § 1560, it should appoint a referee to conduct the sale, and should carefully set forth his duties in the matter and the rights of all parties. § 13. The sale. — Sales in partition are governed by the same laws as sales in foreclosure (see page 239). § 14. The report. — Immediately after the sale, and be- fore the purchase money is paid, the referee should file his report of sale, containing a description of each par- ■252 REFERENCES IN PARTITION SUITS. ■eel sold, the name of the purchaser and the price (Code, § 1576), and an eight days' notice of apphcation for confirmation and for final judgment should be served by plaintiff on the defendants who have appeared. If the report is confirmed, a final judgment is entered ■directing the completion of the sale and the distribu- tion of the proceeds, as provided in the interlocutory judgment (Code, § 1577). § 15. The sale should not be consummated before confirma- tion. — Sometimes the deed is delivered and the purchase money received and distributed by the referee before he makes his report. The purchaser's title might perhaps be valid under this practice (Eockwell v. Decker, 33 Hun, 343), but the ■Code (§ 1577) plainly contemplates the completion of the sale after final judgment, and if the report should not be confirmed the referee would be in an embarrass- ing position. § 16. 'Fees. — The fees of a referee to sell in partition are determined by the same laws as those of a referee to sell in foreclosure (see page 238) ; except that his maximum limit is $500 instead of $50 (Code, § 3297). EEFEEENCES IN ACTIONS FOB DOWER. 26S CHAPTER ni. EFE RKNOES IN Actions for DOWER. I. Bepoee Judgment. §1. Issues. §2. Inquest. §8. Judgment. IL Aftek Judgment. § 4. Reference. §5. Oath and Hearing. §6. Admeasurement § V. Report. §8. Acknowledgment. § 9. Filing and Confirmation of Report EIL Referen CEs TO Sell. § 10. When Ordered. §11. Interlocutory Reference as to Liens. § 13. Sale. § 13. Report of Sale. §14. Confirmation. § 15. Final Judgment. I. Before Judgment. § 1. Issues.— If an issue has been raised it may be referred by consent, or otherwise, in accordance with the general rule. § 2. Inquest. — If any defendant is an infant or absentee, the plaintiff must prove the allegations of the complaint, and a reference may be ordered for this pui-pose (Code Civ. Pro. § 1216; Dwyer v. Dwyer, la Abb. Pr. [N. S.] 269). § 3. Judgment.— Upon a determination of the action in the plaintiff's favor, — whether after a trial, or inquest, or on default,— an interlocutory judgment is rendered in her favor (Code Civ. Pro. § 1607).' 254: REFERENCES IN ACTIONS FOR DOWER. II. After Judgment. § 4. Reference.— The interlocutory judgment must direct that the dower be admeasured by a referee or commissioners (§ 1607, Code Civ. Pro.). § 1607. If thedefendantmiikesdefaultinappearino; or pleading; or jf the right of the plaintiff to dower is nat disputed by the answer; or if it appears, by the verdict, report, or decision upon a trial, that the plaintiff is entitled to dower in the real property described in the com- plaint, an interlonutory judgment must be rendered ; which, except as otherwise prescribed in this article, must direct that the plaintiff's dower in the property, particularly describing it, be admeasured by a referee, designated in the judgment, or by three reputable and disin- terested freeholders, designated therein as commissioners for that purpose. § 5. Oath and hearing. — The referee should take the usual oath (Code, § 1608), and should give a hearing to all persons interested, although this is not required by statute (Smith v. Smith, 6 Lans. 313). § 6. Admeasurement. — He should ascertain whether it is practicable to admeasure the dower, and if it is, he should, as nearly as possible, set out the one-third part of the property (Code, § 1609). § 7. Report. — The referee should report his proceed- ings to the court, showing the division of the property, if it has been divided, oi: the reason for a sale, if a salo be recommended (Code, §§ 1609, 1610). The report is similar in form to a report in a partition suit. § 8. Acknowledgment. — If the partition is made by commissioners, their signatures to the report must bo acknowledged. A referee, however, is an attorney of the court (Eule 80), and his signature would probably be received without acknowledgment. § 9. Filing and confirmation of report. — The report should be filed and the minutes of the testimony with REFERENCES IN ACTIONS FOR DOWER. 255 it. Notice of the filing should be served on all defend- ants who have appeared, and they must file exceptions within eight days. If exceptions are filed a motion for the confirmation of the report should be made, and upon the hearing the court may confirm the report or send it back to the referee for further action (Price V. Price, 41 Hun, 486; Code, § 1611). III. Eefeeences to Sell, § 10. "When ordered. — ^When the plaintiff stipulates to take a gross sum in lieu of dower, under section 161T of the Code, and when the dower cannot be admeasured, the interlocutory judgment must direct a sale and the payment of the dower out of the proceeds, and appoints a referee to conduct the sale. § 11. Interlocutory reference as to liens. — Before render- ing the interlocutory Judgment a reference must be ordered to ascertain whether there are any liens on the land (Code, §§ 1562, 1561, 1621). This follows the practice in partition suits, but it does not appear that the reference can be dispensed with by the production of searches. When such a reference is ordered the referee must advertise for liens in two papers in the county in which the land lies (Code, § 1562 ; Laws'of 1884, c. 133). Having ascertained the liens, he should report the facts to the court; and the report must be confirmed under Eule 30, and the interlocutory judg- ment should provide for the payment of liens out -of the proceeds, or for a sale subject to the hen (Code, § 1622). § 12. Sale.— The sale of the property is governed by the same laws and is conducted in the same manner as sales in actions of foreclosure (see ante, page 229). 256 EBFEEENCES IN ACTIONS FOR DOWEE. § 13. Report of sale. — When the sale has been com- pleted and the deed deUvered, the referee makes and files his report (Code, § 1623). In partition, the law requires a report before the delivery of the deed. § 14r. Confirmation. — The plaintiff should now move for a confirmation of the report and for an order of reference to compute the amount due the plaintiff for her dower. This computation is made in accordance with the Life Tables. § 15. Final judgment. — Upon filing and confirmation of the report, the Court renders final judgment direct- ing the distribution of the money (Code, § 1624). ^aIlES of infant's, etc., real estate. 257 CHAPTEE IV. Eeperences in Proceedings to Sell the Lands of an Infant, Lunatic, Idiot or Habitual Drunkard. § 1. Begun by Petition. Form of Order of Reference. § 2. Reference Essential. § 3. Law must be followed strictly. § 4. Summons. § 5. Proof. § 6. Rule 56, Gen. Rules Prao. § Y. The Report. Form of Report § 8. Confirmation. § 9. Sale. § 1. Begun by petition. — This is a special proceeding and is begun by a petition. The reference is provided for by section 2354, Code Civ. Pro. § 2364. Upon the presentation of the petition, and the filing of the bond, the court must make an order, appointing a suitable person a referee, to inquire into the merits of the application. The referee must examine into the truth of the allegations of the petition ; hear the allegations and proofs of all persons interested in the property, or otherwise interested in the application ; and report his opinion there- upon, together with the testimony, with all convenient speed. Form of order of reference. Present, Hon. At a special term, etc. Justice. TitU of the proceeding. Upon reading and filing the petition of A. B., an infant of the age of sixteen years, and of 0. D., Iiis guardian [or relative'], from which it appears as follows : [Hecite the allegations of the petition which should con- form to. Rule 55, amd Code, §§ 2348, 2349, 2359] ; and an 17 258 SALES OF infant's, ETC., REAL ESTATE. order having been entered in this action on the day of appointing E. Y. special guardian of the said infant, upon his own consent, and the said E. F. having given the bond required by said order, now on motion of M. N., attorney for tlie said petitioner : It is ordered that it be referred to K. G., Esq., as sole referee, to examine into the merits of this application ; to examine into the. truth of the allegations of the petition ; to hear the allegations and proofs of all persons interested in the application; and to report his opinion thereupon, together with the testimony, with all convenient speed. § 2. Reference essential. — A, reference is essential, and the omission of it vitiates the entire proceeding (Matter of Valentine, 72 N. Y. 184), though this was not the law under the Eevised Statutes (Matter of Mcllvaine, 15 Abb. Pr. 91). § 3. Law must be followed strictly. — The proceeding is in derogation of the common law and every step must be taken in strict accord with the statute (Battell v. Torrey, 65 N. Y. 294). § 4. Sammons. — All persons interested should be notified of the hearing before the referee by the usual summons. § 5. Proof. — The petitioner should produce evidence as to the facts set forth in Eule 56, and as to any other facts which the referee may deem essential. § 6. Rule 56, Gen. Rules Prac. — The referee appointed on such petition must report as to whether a sale, mortgage or lease of premises (or any and what por- tion thereof), would be beneficial to the infant, lunatic, idiot or habitual drunkard, and the particular reason therefor, and whether the infant, lunatic, idiot or habitual drunkard is in absolute need of having some, and what portion of the proceeds of such sale, mort- gage or lease, for a purpose provided in section 2348 of SALES OF infant's, ETC., REAL ESTATE. 269 the Code, iu addition to what he might earn by his own exertions, and such referee shall also ascertain and re- port the value of the property or interest to be disposed of, specifically as to each separate lot or parcel, and • whether there is any person entitled to dower or a hfe estate, or estate for years in the premises, and the terms and conditions on which it should be sold. And the referee's report shall give such further facts as are necessary or proper on the application. The facts shall be proved on such reference by evi- dence of at least two disinterested persons, in addition to that of the petitioner, and the report shall not refer to the petition or any other paper for a statement of fact. § Y. The report. — The referee should now file his re^ port. He should report specifically on the points set out in Eule 56, and upon the allegations of the com- plaint, and should report his conclusions. The minutes ■of the testimony must be signed and sworn to by the wdtnesses, and filed with the report (Code, § 2354). Form of report. To the court* of Title of jproceeding. In pursuance of an order of this court, duly entered in this proceeding on the day of , by which it was referred to uie to inquire [follow the language of the order], I, , the referee aforesaid, do respectfully report that I have been attended by , etc., etc. That before proceeding to hear the testimony I took the oath prescribed by law, which is hereto annexed. That I proceeded to examine into the truth of the allega- tions of the petition, and after due notice to all persons, in- terested in the property, or otherwise interested in the ap- plication, I heard the proofs of the petitioner, of the infant {and of anybody else who appeared^ who were the only per- sons interested who appeared before me. 260 SALES OF infant's, ETC., REAL ESTATE. That all the material facts stated in said petition are true ; the facts so stated and proved being as follows {insert tJie facts jproved']. And accordingly I am of opinion that the said premifies of A. B. should be sold [or othemnse] at private sale for cash^ at not less than dollars. The minutes of the testimony taken by me are hereto- annexed. Date. A. B., referee. § 8. Confirmation. — The petitioner should now move- for the confirmation of the report and for a final order. § 2355. Upon the filing of the referee's report, and after examining^ into the matter, the court must make a final order upon the applica- tion. In a proper case, a final order, confirming the referee's report must direct that the real property or term, estate, or other interest in real property, or a part thereof, as is necessary, or as justice requires, be mortgaged, let for a term of years, sold, or conveyed, by the special guardian, appointed as prescribed in this title, or by th& committee of the property of the lunatic or other incompetent person. The final order may also contain such directions, respecting the time, manner, and conditions of a sale or conveyance directed thereby, aa the court thinks proper to insert therein. The motion should be made on a notice of eight day& to all parties interested, and upon the return of the motion the court will examine the matter, and in a. proper case will make a final order directing a sale. § 9. Sale. — The sale is conducted by thespecialguard- ian or committee, not by a referee as in foreclosure. MISCELLANEOUS REFERENCES TO SELL REAL ESTATE. 261 OHAPTEE V. Miscellaneous Eeferences to Sell Eeal Property. § 1. Sale of Eeal Estate not Otherwise Provided for. § 2. Reference as to Surplus after Foreclosure by Advertisement. § 1. Sale of real estate not otherwise provided for. — § 1242, Oode Civ. Pro. Except where special provision is otherwise made by law, real - property, adjudged to be sold, must be sold in the county where it is situated, by the sheriff of the county, or by a referee, appointed by the court for that purpose, who must execute a conveyance to the purchaser. The con- veyance is effectual to pass the right, title or interest of a party, adjudged to be sold. But nothing contained in this section shall be deemed to repeal or modify the provisions of any law specially regulating the sale of real property, under a judgment or decree of any court, in any particular county of the State. § 2. Eeference as to surplus after foreclosure by advertise- ment. — § 240T, Code Civ. Pro. Upon the presen- tation of the petition, with due proof of notice of application, the court must make an order, referring it to a suitable person to ascertain and report the amount due to the petitioner and to each other person, which is a lien upon the surplus money; and the priorities of the several liens thereupon. Upon the coming in and confirmation of the referee's report, the court must make such an order for the distribution of the surplus m.oney as justice requires. The practice on such an application would corres- pond to that upon a reference as to surplus moneys in an action of foreclosure. 262 REFERENCES IN MATRIMONIAL ACTIONS. CHAPTER VI. References in Matrimonial Actions. § 1. General Considerations. § 2. References on Default. Forms on Application to obtain a Reference Qn Default. Form of Notice of Motion (where defendant lias sim- ply appeared). Form of Affidavit of Service of Summons and Com- plaint. Form of Affidavit that no Answer or Demurrer has- been received. Form of Order of Eefercuce on Foregoing. § 3. Procedure on Reference by Default. Form of Referee's Minutes. Form of Certificate at Close. Form of Referee's Report, with his Opinion in Action for Divorce. Form of Referee's Report, with his Opinion in Action for a Separation (finding for plaintiff). Form of Referee's Report, with his Opinion in Action for a Separation (finding for defendant). Form of Referee's Report with his Opinion in Action to- Annul Marriage. § 4. Obtaining Judgment in References to take Proof and Report. Form of Judgment for Divorce in Reference to take Proof Form of Judgment for a Separation in Reference to take Proof (for husband's fault). Form of Judgment for a Separation in Reference to tak& Proof (for wife's fault). Form of Judgment Annulling Marriage in Reference to take Proof. § 5. References in Matrimonial Actions where the Issues ai'e Contested. § 6. No Reference as of Course on Consent. § 7. Control over the Appointment of the Referee. Form of Consent to Refer in Matrimonial Actions. § 8. The Order of Reference. § 9. Procedure on the Reference to hear and determine. REFERENCES IN MATRIMONIAL ACTIONS. 263 General form of Referee's Report in Matrimonial Actions in References to hear and determine. Form of Notice of Application to Confirm Referee's Report to hear and determine the Issues in a Matrimo- nial Action. § 10. Proceedings on the Confirmation of the Report. § 11. The Judgment. General Form of Judgment in Matrimonial Actions in References to hear and determine. § 1. General considerations. — Under the comprehen- sive title "Matrimonial Actions," are included by the Code of Civil Procedure, actions to annul avoid or void- able marriage, actions for a divorce, and actions for a separation. A statement of the substantive law rela- tive to these subjects would carry this volume far beyond the limits intended We shall confine our- selves to the practice in these actions in cases of refer- ences. If a reference is had, the procedure is the same as in other references of the same class. If default is made in any of these actions, or the defendant simply appears, but does not answer or demur within the time allowed by law, the reference is to take proofs and report to the court with the referee's opinion. In such case the reference proceeds as in any ordinary inter- locutory reference. The report, with the testimony of the witnesses annexed, is brought before the court at special term, and judgment rendered by the court. If the issues are contested, the reference is to hear and determine, and the referee proceeds as in ordinary ref- erences to hear and determine, except that the wit- nesses sign their testimony, and the referee annexes the same to his report, which must be confirmed by the court before judgment can be entered thereon. The distinguishing feature of all matrimonial actions, no matter what the form of the order of reference, is the absolute necessity of bringing all the proofs before the court before judgment can be rendered. § 2. References on defanlt. — In this class of cases, where the defendant does not appear, or ' after appearance. 2Gi REFERENCES IN MATRIMONIAL ACTIONS. fails to interpose an answer or demurrer, the practice is, on making due proof of the service of the summons and complaint, to apply for an order of reference to take proof of the material allegations of the complaint, with the referee's opinion thereon. Proof of the proper service of the summons and com- plaint is of the utmost importance. Eule 73, Gen. Eules Prac, forbids the granting of an order of refer- ence without proof by affidavit, conformable to tlie rules relating to the manner and proof of the service of the summons and complaint. Eule 18, Gen. Eules Prac, provides that in matri- monial actions, in addition to the proof of service re- quired in ordinary actions, the affidavit " shall state what knowledge the affiant had of the person served being the defendant and proper person to be served, and how he acquired such knowledge. The court may require the affiant to appear in court, or before the referee if a reference be ordered, and be examined in respect thereto, and when service has been made by the sheriff, may require the officer who made the same to be summoned and examined in like manner." Hoio tl)e s^lmmons is to he maried. Section 1774, Code Civ. Pro. In an action brought as prescribed in this title a final judgment shall not be rendered in favor of the plaintiff, upon the defendant's default in ap- pearing or pleading, unless either the summons and a copy of the com- plaint were personally served upon the defendant ; or the copy of the summons delivered to the defendant, upon personal service of the summons, or delivered to him without the State, or published pursuant to an order for that purpose, obtained as prescribed in chapter fifth of this act, contains the following words, or words to the same effect, legibly written or printed upon the face, thereof, to-wit : "Action to annul a marriage ;" " Action for divorce ;" or ' ' Action for a separation ;"' according to the article of this title, under which the action is brought. Where the summons is personally served, but a copy of the complaint is not served therewith ; or where a copy of the summons and a copy of the complaint are delivered to the defendant without the State, the certificate or affidavit proving service, must affirmatively state, in the body thereof, that such an inscription setting forth a copy thereof, was so written or printed upon the face of the copy of the summons delivered to the defendant. REFERENCES IN MATRIMONIAL ACTIONS. 265 The same strictness in respect to the proof of the service of the summons and complaint was required under the old chancery practice (Shetzler v. Shetzler, 2 Edw. Chan. 584). The rule prescribe/i in Gen. Eules Prac. TS, above quoted^ is imperative, and must appear in the case when the evidence is presented to the court (Sullivan v. Sulhvan, 41 Super. [J. & S. ] 519). In Louns V. Louns, 1 Month. L. Bull. 34, the party who served the summons had no previous acquaintance with the de- fendant, and the plaintiff pointed out the person served as the defendant. It was held that a decree of divorce ■could not be granted upon such evidence, that the report must be sent back for further proof in regard to the defendant. Forms on applicntiou to obtain a reference on default. Form of notice of motion (wliere defendant lias simply appeared). Title of the case. Please to take notice that upon the summons and com- plaint in this action, and the affidavit of service thereof on defendant on the day of , 188 , and the affi- davit of A. B., setting forth that the time to answer or de- mur herein has expired, and that the defendant has failed to serve an answer or demurrer to the complaint, a motion will be made at a special term of the court of , to be held at Chambers thereof, in the court house in the ■city of New York, on the day of , 188 , at o'clock in the forenoon of that day, or as soon there- after as counsel can be heard, for an order appointing a ref- eree to take proof of all the material facts charged in the complaint, and for such other or further order or relief as may be just. Dated. 0. D., Attorney for plaintiff. To E. F., Attorney for defendant. 266 EEFEREKCES IN MATRIMONIAL ACTIONS. Form of affldarit of service of sammons and complaint. Title of the case. City and County of New York, ss.: I. A. B., being duly sworn, says that he is of the ,age of twenty-one years and upwards. II. That on the day of , 188 , at No. street, in the city of , he served the annexed summons and complaint on C. D., the defendant above named, by de- livering to him personally copies of said summons and complaint, and leaving the same with him at the time of such service. Deponent further says that he knew the said C D., the person so served by him as aforesaid, to be the same person mentioned and described in said summons and complaint as the defendant in this action. III. That deponent has been acquainted with said defend- ant for a period of months past. That he has served tlie summons and other papers in another action ou said defendant in the month of last, that deponent has had conversations with said defendant relative to the support- and maintenance of his wife, the plaintiff, and deponent knows that the person served by him as aforesaid is the hus- band of plaintiff and defendant in this action. Sworn to before me this | A. B. day of 188 . f Rule 73, Gen. Rules Prac. When the action is for divorce on the ground of adultery, unless it be averred in the coni]ilaint that the aduUeiy charged was committed without the consent, connivance, privity or procurement of the plaintiff; that five years have not elapsed since the discovery of the fact that such adultery had been committed ; and that the plaintiff has not voluntarily cohab- ited with the defendant since such discovery ; and also, where at the time of the offense charged, the defendant was living in adulterous intercourse with the person with whom the offense is alleged to have been committed. That five years have not elapsed since the commencement of such adulterous intercourse was discovered by the plaintiff, and the complaint containing such averments be veri- fied by the oath of the plaintiff, in the manner prescribed by the code, judgment shall not be rendered for the relief demanded, until the plaintiffs affidavit be produced, stating the above facts ; and in case of REFERENCES IN MATRIMONIAL ACTIONS. 26T Form of affldarit that no answer or demurrer has heen received. Title of the case. City and County of New York, ss.: A. B., being duly sworn, deposes and says that he is the attorney for the above named plaintiff. That this is an action for divorce on the ground of defendant's adultery. That the summons herein was duly served on the defend- ant in this action on the day of . That defendant appeared, but has not answered. That no answer or de- reference the plaintiff shall be specifically examined on oath, as ta each of these particulars. Rule T4, Gen. Rules Prac. Affidamt required. To obtain an order of reference, if the complaint seeks to annul a marriage on the ground that the party was under the age of legal consent, an affidavit must be produced showing that the parties thereto have not freely cohabited for any time as husband and wife, after the plaintiff had attained the age of consent. If the complaint seeks to annul the marriage, on the ground that the plaintiffs consent was obtained by force or fraud, the plaintiff must show by aflfidavit that there has been no voluntary co- habitation between the parties as man and wife ; and, if it seeks to annul a marriage, on the ground that the plaintiff was a lunatic, an affidavit must be produced showing that the lunacy still continues ; or the plaintiff must show by his affidavit that the parties have not cohab- ited as husband and wife, after the plaintiff was restored to his reason, and in case of reference, the plaintiff shall be examined specially as ta these facts. Rule 75, Gen. Rules Prac. Answer in divorce. The defendant, in the answer, may set up the adultery of the plaintiff, or any other mat- ter which would be a bar to a divorce, separation, or the annuling of a marriage contract ; and if an issue is taken thereon, it shall be tried at. the same time and in the same manner as other issues of fact in the cause. Rule 76, Gen. Rules Prac. Legitimacy of children. On a complaint filed by a husband for a divorce, if he wishes to question the legitimacy of any of the children of his wife, the allegation that they are or that he believes them to be illegitimate, shall be distinctly made in the complaint. If a reference is ordered, proofs shall be taken upon the question of legitimacy, as well as upon the other matters stated in the complaint ; and if the issue is tried by a jury, an issue on the question of legitimacy of the children shall be awarded and tried at the same time. 268 REFERENCES IN MATRIMONIAL ACTIONS. murrer lias been interposed, tliongli more than twenty days have elapsed since the service of said summons and com- plaint. Deponent asks for an order that it may be referred to a referee to take proof of the material facts alleged in the complaint, to report to this court with all convenient speed. Sworn to before me this ) A. B, day of .188 . j Form of order of reference on foregoing. At a special term, etc. Present, Hon. Justice. Title of the case. On reading and filing the summons and complaint in this action, together with due proof of the service thereof, the affidavit of A. B., the notice of motion, together with due proof of the service thereof, and after hearing C. D., Esq., the plaintiff's attorney, in support of said motion, it is ordered that this action be and the same hereby is referred to E. F., Esq., counselor at law, tp take proof of all the material allegations set forth in the complaint, and report the same, together with his opinion thereon, to this court with all convenient speed. § 3. Procedure on reference by default. — The reference proceeds as in ordinary interlocutory references. If the defendant has appeared he should receive notice of the hearing before the referee. Notice in such case would be the summons served in interlocutory refer- ences [for form, consult the chapter on interlocutory references] . While it is not within the power of the court in an action for divorce to allow a third person wuth whom acts of adultery are charged to have been committed to come in and defend, as a party to the suit, yet the court may, and will in a proper case, allow such third person to attend upon the examination of the witnesses EBPEEENCES IN MATRIMONIAL ACTIONS. 200 and cross-examine tlie witnesses upon the reference to take proof of facts, and direct that such third person be called as a witness, and that such witnesses as she may name be summoned and examined (Clay v. Clay, 10 N. Y. Week. Dig. 362). The referee must take testimony of all the material facts necessary to give the court jurisdiction (Pugsley V. Pugsley, 9 Paige Ch. 589 ; Arborgast v. Arborgast, 8 How. Pr. 297), or fco enable it to pass intelligently upon the request for the relief prayed for (Myers v. Myers, 41 Barb. 114 ; Bokel v. Bokel, 3 Edw. Ch. 376 ; Dobbs V. Dobbs, lb., 378) ; but such evidence must be pertinent to the issues in the case before him (Ager V. Ager, 1 Month. L. Bull. 20). The witnesses appear before the referee, are sworn by him and subscribe their testimony. In the great majority of cases, where references are ordered on default, the defendant does not appear before the referee on the reference, but if he does, he is of course entitled to be heard. The testimony is afterwards annexed to the report. Prefixed to the proofs should be a state- ment in the form of minutes, showing what was done on the reference and who attended. Some referees report the testimony entirely in the form of question and answer ; others put the testimony, which is merely introductory, in narrative form, and the balance in the form of question and answer ; and some put the entire testimony in narrative form. Each of these methods has been sanctioned by long usage ; though the writer submits that the method of reporting the testimony by question and answer is not to be recommended. The original testimony must be filed with the report (Fair- banks V. Fairbanks, 2 Edw. Ch. 208). 270 REFERENCES IN MATRIMONIAIj ACTIONS. Form of referee's minutes. Title of the case. Date. Oath of Referee {Jorform, seepage 64]. Examination of witnesses in above entitled action, before me A. B., referee, appointed by order of the Court, on the day of , 1888. The plaintiflE appears in person and by C. D., her counsel. Tlie defendant did not appear in person or by counsel. E. F., being called for the plaintiff, was duly sworn. I reside at No. street, in the city of . Am in the express business, and know 0. D., the defendant. I formed his acquaintance at , last July. Since then I have frequently seen him and have done business with liim, etc., etc., etc. (Signed) E. F. Sworn before me this day ) of 1888. j A. R, Keferee. {If adjournmenti are had, note same, and state as above who attended and what was done. Annex the depositions of the remaining witnesses amd the exhibits, if any are pro- duced.) Form of certiflcate at close. Title of the case. I do respectfully report that the foregoing is a true record of ail the testimony taken and the proceedings had before me on the reference in the above entitled action, and that the only exhibit produced and left me on said reference is Exhibit A., hereto attached. Dated. A. B., Referee. REFERENCES IN MATRIMONIAL ACTIONS. 271 Fai'iu of referee's report with his opinion in action for divorce. Title of the case. To the Court of Pursuant to an order of this court dated the day of , whereby tlie above entitled matter was referred to ine to take the testimony Iierein and to report the same to this court with all convenient speed, together with my opinion thereon, I,* the undersigned, do respectfully report : That I have been attended for the plaintiff by C. D., his attorney, but that there has been no appearance for the defendant. The annexed testimony is respectfully reported, together MJtli my opinion thereon, to wit : that there are established thereby the following conclusions of fact: I. That on the day of , 1888, the plaintiff inter- mai-ried with the defendant in the city of in the State of II. That since said marriage and until about years past, said plaintiff and defendant cohabited as husband and wife. III. That during said time they had six children, the issue of said marriage, two of whom are now living, to wit : Emma, aged years, and Willie, aged years. IV. That the plaintiff herein was, at the time of the commencement of the act of adultery hereinafter men- tioned, and in fact for years past, an inhabitant of the city of and State of , and that the defendant resided in the same place, till about years since, but that she has during the last years been an inhabitant of the State of V. That on the day of , 1888, the defendant com- mitted adultery with one 0. D., at a public house, called the , in the village of , in the State of YI. That said adultery was committed without the con- sent, connivance, privity or procurement of the plaintiff. YII. That five years have not elapsed since the discov- ery by the plaintiff of the commission of said act of adultery, 272 REFERENCES IN MATRIMONIAL ACTIONS. and that the plaintiff has not voluntarily cohabited with the defendant since said plaintiff discovered the fact of such adultery. VIII. That the plaintiff has not been guilty of the act of adultery as charged in the answer of the defendant heroin. IX. That there is no judgment or decree in any court or judicial tribunal in the State of New York of competent jurisdiction in favor of defendant and against the plaintiff for a divorce upon the ground of adultery. And I further report my opinion as to the conclusions of law to be : I. That a divorce should be decreed in favor of the plaintiff, dissolving said marriage, for the adultery so com- mitted by the defendant. II. That the plaintiff should have the care and custody of said children. All of which is respectfully submitted. Date. A. B., referee. Form of referee's report with his opiuion in action for a separa- tion (flndingr for plaintiff'.) Title of the case. To the court of I, A. B., the referee duly appointed by this court in this action, hy order dated the day of , 1888, to take proof of all the material facts charged in the complaint and to report the evidence so taken, do respectfully report as follows: That I have been attended by the plaintiff above named and his counsel, C. D., and also by the defendant in person. That before proceeding with the hearing under said order of reference, I took and subscribed the annexed oath required by section 1016 of the Code of Civil Procedure. That I have taken the proofs and testimony hereto annexed, which form a part of this my report, and have considered the same, and therefrom I am of the opinion and REFERENCES IN MATRIMONIAL ACTIONS. 273 I do find and report that the following material allegations of the complaint are true and have been sufficiently proven. I find the following facts: I. That the plaintiff and defendant were married at the city of ISTew York, on the day of 1888, and the plaintiff is years of age, * II. That the defendant is years of age. III. That the plaintiff and defendant were at the time of said marriage, and ever since have been and now are, residents and actual inhabitants of the city and State of Kew York. IV. That there is no issue of the said marriage. Y. That defendant, since said marriage, has treated the plaintiff in a cruel and inhuman manner. VI. That at the plaintiff's residence, number street, in the city of , on the day of , 1888, said defend- ant, without cause or provocation, wilfully, and with intent to injure the plaintiff, threw a heavy metal lamp at the plaintiff. VII. That for three months prior to the commencement of this action the defendant refused to prepare any meals for the plaintiff, although provided with the necessaries therefor, repeatedly saying to him when asked for breakfast, " You , get it yourself." That the defendant is a pei-son of fierce and ungovernable temper, giving vent habitually to violent rage and frenzy, using obscene and profane language, by reason of which, and her intemperance, the plaintiff could not retain and keep servants in his household and employ, they being unable and refusing to live in the house with the defendant. VIII. That during one year, last past, and at the plaint- iff's residence at street, in the city of , the defend- ant, without cause or provocation, wilfully, and with intent to injure the plaintiff, did frequently, and as often as three or four times a week, during the time aforesaid, strike him with stones, and throw and hurl stones at him as he was leaving his residence, striking him upon the arms and about the body. IX. That at various times and places since said marriage and more especially within the last five years, and habitually said defendant has used insulting, abusive, profane and 18 274 REFERENCES IN MATRIMONIAL ACTIONS. indecent language to the plaintiff, and has repeatedly called him by opprobrious epithets, a , charged him with keeping mistresses and -with being rotten and infected with the venereal disease, and often stating to the plaintiff that she wished he was dead, and threatening to poison and kill him. X. That the aforesaid acts and conduct of the defendant have caused the plaintiff great mental pain and anguish. That plaintiff has become and still is distressed in body and ill, and has reasonably apprehended personal violence, physi- cal injury and danger to his life, and that further cohabita- tion with the defendant will be attended with danger to bis life and health. Upon these facts I am of opinion and do find and report as Conclusions of Law. I. That the material allegations of the complaint are true and have been sufficiently proven before me, and that the defendant has been and is guilty of cruel and inhuman treatment of the plaintiff, and of acts and conduct towards the plaintiff which render it unsafe and improper for the plaintiff to cohabit with the defendant. II. That the plaintiff is entitled to the usual decree and "judgment of separation, separating tlie said parties from bed and board forever, and I am of opinion that such decree and judgment should be made and entered herein according to the practice of this court. III. That the plaintiff should not be compelled to make any provision for the support of the defendant. All of which is respectfully submitted. Date. A. B., Referee. EEFEEENOES IN MATRIMONIAL ACTIONS. 2li I'orm of referee's report with Lis opiuion in action for a separa- tion (finding for defendant). Title of the case. To the Court of Pursuant to an order of this court, dated the day of , whereby the above entitled matter was referred, to me to take the testimony herein, and to report the same to this court with all convenient speed, together with my opinion thereon, f, the undersigned, do respectfully I'eport : That I have been attended for the plaintiff by C. D., her attorney, but that there has been no appearance for the ■defendant. The annexed testimony is respectfully reported, together Tvith ii;iy opinion thereon, to wit : I find as conclusions of fact : I. That from the day of , 1888, to the day of , the parties to this action occupied an apai'tment together at !N"o. street in the city of New York. II; That the said parties Avere never married. III. That the said parties never cohabited nor lived "together as man and wife, but that their intercourse was immoial and improper. IV. That at no tiuie did the defendant ever represent to others, or show tliat he regarded the said plaintiff as liis wife. V. That at no time did the defendant ever repi-esent to plaintiff that he considered her his wife, or act towards her iis though he regarded her as his wife. And I farther report my opinion as to the conclusions of law to be : I. That the material allegations of the complaint have eot been proved. II. That the complaint should be dismissed. All of which is respectfully submitted. Date.* A. B., referee. 2Y6 REFERENCES IN MATRIMONIAL ACTIONS. Form of referee's report with his opinion in action to annul mai-riag'e. [Formal allegations as in preceding. '\ I find the following facts : I. That on the day of , 188 , the plaintiff resided in the town of , in the State of New York, with her father. II. That on the day of , 188 , the defend- ant informed the plaintiff that he was instructed by her parent to take the said plaintiff to the town of to^ school. III. That said representation was false. IV. That plaintiff, relying upon the aforesaid representa- tion, accompanied the defendant to the town of , and; that after arriving there the defendant and plaintiff were mar- ried by one, A. B., upon the representation of defendant that- such marriage was at the request of the plaintiff's father. V. That at the time of such marriage the plaintiff had not attained the age of sixteen years. VI. That plaintiff attained the age of sixteen years on the day of , 188 VII. That said marriage was without the consent of said plaintiff's father, and was in direct violation of his specific- orders to the contrary. VIII. That immediately after said marriage, the plaintiff" and defendant separated and the plaintiff I'eturned to her fatlier's house. IX. That plaintiff has at no time since said marriage lived with or cohabited with defendant as his wife. X. That said marriage was at no time ratified by any mutual assent of the parties after the plaintiff attained the age of sixteen years. Upon these facts I am of opinion and do find and report as conclusions of law : That the material allegations of the complaint are true and liave been sufficiently proven before me, and that the plaint- REFERENCES IN MATRIMONIAL ACTIONS. 277 iS is entitled to judgment. That said marriage between lier and the defendant be annulled. All of which is respectfully submitted. Date. A. B., referee. § 4. Obtaining judgment in references to take proof and leport. — The judgment is rendered by the court at a special term upon the proofs taken by the referee and •cannot be entered without direction of the court (Blott Rule 77, Gen. Rules Prac. No judgment, annulling a marriage con- "tract or granting a divorce, or for a separation or limited divorce, shdll be made of course by the default of the defendant; or in consequence of .any neglect to appear at the hearing of the cause, or by consent. And every such cause shall be heard after the trial of the issue, or upon the coming in of the proofs at a special term of the court ; but where no person appears on the part of the defendant, the details of the evidence in adultery cases shall not be read in public, but shall be submitted in •open court. No officer of any court, with whom the proceedings in an adultery case are filed, on or before whom the testimony is taken, nor any clerk of such officer, either before or after the termination of the suit, shall permit a copy of any of the pleadings or testimony, or of the substance of the details thereof, to be taken by any other person than ■a party or the attorney or counsel of a party, who has appeared in the <;ause, without a special order of the court. No judgment in an action for a divorce shall be entered except upon the special direction of the court. Action to annul a marriage. Code Civ. Pro., § 1753. In an action brought as prescribed in this article, a final judgment annulling the marriage, shall not be rendered by default, for want of an appeai-ance •or pleading, or upon the trial of an issue, without proof of the facts, upon which the allegation of nullity is founded. And the declaration or confession of either party to the mairiage, is not alone sufficient as j)roof, but other satisfactory evidence of the facts must be produced. In such an action, except where it is founded upon an allegation of the physical incapacity of one of the parties thereto, the court must, upon the application of either of the parties, make an order directing the "trial, by a jury, of all the issues of fact ; or it may, of its own motion, make an order directing the trial, by a jury, of one or more issues of • fact, for which purpose the questions to be tried must be prepared and settled as prescribed in section 970 of this act. Action for a divorce. Code Civ. Pro., § 1757. The answer of the defendant may be made without verifying it, notwithstanding the veri- fication of the complaint. If the answer puts in issue the allega- 2(8 REFERENCES IN MATRIMONIAL ACTIONS. V. Eider, 47 How. Pr. 90). If the unsuccessful party- has appeared he is entitled to notice of the trial at special term (Blott v. Eider, 47 How. Pr. 90). The notice to be given is not of a motion to confirm the ref- eree's report, but of a trial at the special term upon the proofs annexed to the referee's report (Sulhvan v. SuUi- van, 41 Super. (J. & S.) 519 ; Westheimber v. Westheim- ber, 1 Law Bull. 34; Meyers. Meyer, 7 Weekly Dig. 535). Of course, if the unsuccessful party has not appeared, the application for judgment on the proofs is made ear parte. The court is required to scrutinize the testi- mony closely, and not to direct judgment where the evidence is doubtful, uncertain or unsatisfactory (Moore V. Moore, 14 Weekly Dig. 255). The requirement mentioned in the last sentence of §1757, Code Civ. Pro., respecting a judgment against plaintiff in favor of defendant for divorce is jurisdic- tional (Pollock v. Pollock, 71 N. T. 137). tion of adultery, the court must, upon the application of either party^ or it may, of its own motion, make an order directing the trial, by a. jury, of that issue, for which purpose the questions to be tried must be prepared and settled, as prescribed in section 970 of this act If thfr answer does not put in issue the allegation of adultery, or if the defend- ant makes default in appearing or pleading, the plaintiff before he is^ entitled to judgment, must nevertheless satisfactorily prove the material allegations of his complaint, and also, by his own testimony, or other- wise, that there is no judgment or decree in any court of the State of competent jurisdiction against him in favor of the defendant for a divorce upon the ground of adultery. REFERENCES IN MATRIMONIAL ACTIONS. 279 ' Form of judgment for divorce in reference to take proof. At a special term, etc. Present, Hon. Justice. Title of the case. This action having been brought on upon the plead- ings and upon the report of A. B., with proofs annexed, and filed. Now, on motion of C. D., attorney for the plaintiff herein, it is ordered and adjudged, and this court doth hereby order and adjudge, that the marriage between the plaintiff, E. F., and the defendant, G. H., be and the same hereby is dissolved, and the said parties and each of them are freed from the obligations thereof. That it shall be lawful for the said plaintiff, E. F., to resume her maiden name of , and to marry again as though the said defendant, G. H., were actually dead, but that it shall not be lawful for the said defendant, G. H., to marry again until the said plaintiff, E. F., shall be actually dead. And it is further ordered and adjudged that the clothing and wearing apparel of the plaintiff and ornaments of her person, and all goods and personal effects which have been left with the plaintiff by the defendant, and all goods, property and effects which have been acquired by the plaintiff by her own industry, since the day of , and all goods, lands, tenements, effects and property which she may have acquired by gift, grant, devise or otherwise, or to which she may be entitled by the decease of any relative intestate, shall be her sole and separate estate and property. And it is further ordered and adjudged that the defend- ant pay to the plaintiff the costs of this action, to be adjusted by the clerk of the county of , and inserted in this decree, amounting to the sum of dollars. vVnd it is ordered that the plaintiff shall be entitled to and be 280 REFERENCES IN MATRIMONIAL ACTIONS. cLarged with the custody, care and education of the chil- dren of tlie parties hereto. And it is further ordered, decreed and adjudged, that tho said defendant pay to the said plaintiff, the sum of dollars, per annum, from the date of this decree, in semi- annual payments, for the support and maintenance of said plaintiff during her natural life, or until she shall marry again, and that the said defendant give security to tlie clerk of the county of , to be approved by one of the justices of this court, for the payment thereof, but such payment is not to be in iieu of her right to dower in the defendant's real estate, or interest in his personal estate, in case of his death intestate ; also ordered, that the plaintiff may have execution for the collection of said costs, and the moneys ordered to be paid for the support and maintenance of the plaintiff as aforesaid. (Adapted from Park v. Park, 80 N. T. 156.) Form of judgment for a separation in reference to take proof (for husband's fault). At a special term, etc. Present, Hon. Justice. Title of the case. This cause, coming on to be heard on the pleadings and the referee's report' herein, and the evidence attached thereto, now, on hearing A. B., counsel for the plaintiff, it appearing from the said evidence that the defendant has been guilty of cruel and inhuman treatment of the plaint- iff by repeated acts of personal violence, so as to render it unsafe and improper under existing circumstances for her to cohabit with him, or to be under his dominion or control, it is ordered that the plaintiff and defendant be separated from bed and board forever, provided, however, that tiie parties may at any time hereafter, by their joint and volun- tary act, apply to the court for leave to be discharged from tliis order. REFERENCES IN MATRIMONIAL ACTIONS. 281 [Insert provision for the custody of the children of the jparties as in pi'eceding form.] And it is further ordered, that the defendant pay to the plaintiff the sum of dollars per year, to be computed from the date of this decree, in half-yearly payments, to be applied towards the support and maintenance of the plaint- iff and her son, and this allowance is to continue until further order, and be subject to variation as future circum- stances may require. And it is further ordered, that the defendant pay to the plaintiff the costs of this suit to be taxed, and that she have execution therefor, according to the course and practice of the court. (Adapted from Barrere v.__ Barrere, 4 Johns. Ch. 187.') Form of judgment for separation in reference to take proof (for wife's fault). At a special term, etc. Present Hon. Justice. Title of the case. The summons in this action having been personally served upon the defendant, and the said defendant being in default thereafter, in appearing or pleading, and an order of refer- ence having been duly made to A. B., as referee, to take proof of the material facts charged in the complaint herein, and to report the evidence so taken, with his opinion thereon to this court, which order bears date the day of , 1888, and said referee having made his report, which bears date the day of , 1888, and was filed with the clerk of this court on the day of , by which report it appears that the material allegations of the complaint are true, and the defendant has been guilty of acts of cruel and inhuman treatment charged therein, and that it is unsafe and improper for the plaintiff to cohabit with the defend- ant, and on motion of C. D., plaintiff's attorney, no one appearing in opposition thereto : It is adjudged and decreed that the said defendant, E. F., be separated from the bed 282 EEFERENCES IN MATRIMONIAL ACTIONS. and board of the plaintiff, G. H., forever. And it is liereby f urtiier declared that neither party to this action is at liberty to marry again during the life of the other party. And it is also adjudged and decreed that the plaintiff is not compelled to make any provision for the support of the said defendant, E. F., and that application may be made to the court from time to time upon the footing of this order or decree for such further order, judgment or decree, as may be proper. Form of jadgment annnlling marriage in reference to take proof. [Formal recitals as in preceding']. Oitlered that the marriage mentioned in the complaint in this action, entered into between the plaintiff, E. F., and the defendant, C. D., is wholly null and void from the date of this judgment, upon the grounds of the legal incapacity of the said defendant and E. F. to contract said marriage, for the reason that at the time of the marriage between the plaintiff, E. F., and the defendant, C. D., the said defend- ant was the lawful wife of one K. G., who is now living and a resident of the state of (Adapted from O'Dea v. O'Dea, 101 N. T. 23). § 5. References in matrimonial actions where the issues are , contested. — Where the defendant contests the issues, a reference can be ordered only on consent (Morrell v. Morrell, IT Hun, 324; Batzel v. Batzel, 42 Superior Ct. [J. & S.J 561; McCrea v. McCrea, 58 How. 220 ; Baker V. Baker, 3 Month. Law Bull. 93), except in an action to annul a marriage or^ the ground of physical inca- pacity, in which case the parties are not, under Code Civ. Pro. § 1753 (quoted on page 277), entitled to a jury- trial of the issues of fact. But while a reference can oiily be ordered on consent, where the issues are con- tested, except as stated, there is a power vested in courts of equity to refuse to hear a defendant where REFERENCES IN MATRIMONIAL ACTIONS. ,28S he is in contempt for disobeying an order of the court. Thus in Walker v. Wallier, 8 Abb. N. C- 436 ; s. c, 82' N. Y. 260; afE'g 20 Hun, 400 ; where the defendant in an action for divorce was in contempt because of diso- bedience to an order directing the payment of alimony, it was held, that an order directing defendant's answer to be stricken out, unless he obeyed the order within five days, and an order striking out his answer upon such failure and directing a reference to take proof of the facts stated in the complaint, were proper. § 6. No reference as of course on consent. — Notwith- standing that the parties to the action consent to the reference, there is no such thing as a reference as of course in nfiatrimonial actions on consent. Code Civ. Pro. § 1012, provides that the court may, in its discre- tion, grant or refuse the reference. § 7. Control over tlie appointment of the referee. — Eule 73, Gren. Eules Prac. When an action is brought to obtain a divorce or separation, or to declare a marriage con- tract void, the court shall in no case order the refer- ence to a referee nominated by either party, nor to a referee agreed upon by the parties. Section 1024, Code Civ. Pro. A referee appointed by the court must be free from all just objections; and nO' person shall be so appointed to whom all the parties object, except in an action to annul a marriage, or for a divorce or a separation. While a reference of the issues in a divorce case, to a person agreed upon by the parties, is an irregularity, it does not render the reference absolutely void. It has been held, that by appearing and participating in the reference, the defect is waived (Fullmer v. Full- mer, 6 Week. Dig. 22, 42 ; Lincoln v. Lincoln, 6 Eobt. [N. Y. Superior] 525). » 284 EEFERENCES IN MATRIMONIAL ACTIONS. Form of consent to refer in matrimonial actions. TiUe of the case. This action being brought to obtain a divorce for the al- leged cause of adultery committed by the defendant or \to unnul a marriage on the ground of ] or \^for a separ- ation on the ground of J, and being at issue upon the answer denying the same, it is hereby stipulated and agreed that a trial by a jury of the issues in this cause be and the «ame is hereby waived. And it is further agreed that this action, and all the issues therein, be, if the same is consented to by the court, referred to hear and determine the same. ^ Date. A. B., plaintiff's attorney. C. D., defendant's attorney. As to the necessity of consent being in writing, see page 2. § 8. The order of reference. — In contested, cases where the court permits a reference on consent of the parties, it is a reference to hear and determine (Harper v. Har- per, 5 Weekly Dig. 460 ; McCleary v. McCleary, 30 Hun, 154 ; Sullivan v. Sullivan, 41 N. T. Superior [J. & S.] 519 ; Waterman v. Waterman, 37 How. Pr. 36 ; Mer- rill V. MerriU, 11 Abb. Pr. [N. S.] T4 ; Lincohi v. Lin- coln, 6 Eobt. 525 ; Diddell v. Diddell, 3 Abb. Pr. 167 ; Harding v. Harding, 43 N. Y. Superior [J. & S.J 27 ; Bhss V. Bliss, 11 Civ. Pro. 94 ; Whale v. Whale, 1 Code E. 115 ; Goodrich v. Goodrich, 21 Weekly Dig. 264). The order is the one usually employed in orders of ref- ence to hear and determine. For form, see page 2. § 9. Procedure on the reference to hear and datermine. — The reference in this class of cases is brought on by notice of trial (for form, see page 51), and the pro- cedure is the same as iu ordinary ref ei'ences to hear and REFERENCES IN MATRIMONIAL ACTIONS. 28.> determine, except that all the testimony is annexed to the referee's report, and the latter presented to the court for confirmation before judgment can be entered thereon. General form of referee's report iu matrimonial actions in refer- ence to hear and determine. Title of the case. To the court of I, the undersigned, to whom this case was, by order dated the day of , referred, do report: [^Eere insert the formal recitals, the findings of fact and conclusions of law, as in referee's report, with opinion / for form in divorce, see page 5i71 / for form in annulment of marriage, seepage 276 / for forms in action for separation, see pages 272, 275.] That the plaintiff is entitled to judgment that the mai*- riage between him and said defendant was illegal, or \that plaintiff is entitled to a judgment of divorce dissolving the marriage between him and defendant'], or [that plaintiff is entitled to a judgment separating the parties from hed and board forever]. And judgment is so ordered. All of which is respectfully submitted. Date. A. B., referee. Form of notice of application to confirm referee's report to hear and determine the issues in a matrimonial action. Title of the case. Tate notice, that upon the report of the referee, a copy of which is herewith served upon you, the referee's minutes, and the testiiuouy thereunto annexed, and upon the plead- ings and all the other papers and proceedings in this action, this court will be moved at the next special term thereof, to be held at the court house in the city of , on the 286 EEFEEENCES IN MATRIMONIAL ACTIONS. •day of , at the opening of the court, or as soon thereafter as counsel can be heard, for a rule or order of said <;ourt confirming the report of the referee herein, and for a decree annulling the marriage between the plaintiff and defendant, or S^for a judgment of divorce dissolving ■said marriage], or \^for a judgment separating the parties from 'bed and board forever] in conformity with the report of the said referee, and for such further order or relief as the court may grant in the premises. Dated. Yours, etc., A. B., Plaintiff's attorney. To C. D., Defendant's attorney. § 10. Proceedings on the confirmation of the report. — The application to confirni is made at special term. In the city of New York the practice is to make the motion at chambers. .Judgment cannot be entered dismiss- ing the complaint (Lewellyn v. Lewellyn, 1 Law Bull. 34), or in plaintiff's favor upon the report, with- out confirmation by the court (McCleary v. McCleary, 30 Hun, 154 ; Waterman v. Waterman, 37 How. Pr. 36 ; Greene v. G-reene, 14 Weekly Dig. 159). The case of Bihin v. Bihin, 17 Abb. Pr. 19, must be regarded Code Civ. Pro., § 1229. In an action to annul a marriage, or for v, divorce or sepai-ation, judgment cannot be taken, of coarse, upon aref- eree's report, as prescribed in the last section [seeiioti 1228, authorizing the entry of judgment as of course in ordinary references to hear and de- termine], or where the reference was made as prescribed in section one thousand two hundred and fifteen of this act [references on applicatiuii. for judgment hy default]. Where a reference is made in sucli an action, the testimony', and the other proceedings upon the reference, musi bo certified to the court, by thereferee, with his report, and judgment mast be rendered by the court. Rule 37, Gen. Rules Prac, prescribes that on the failure of the op- posite part}' to oppose, the party moving for an order shall be entitled thereto, on proof of due service of the notice of motion and papers re- quired to be served, unless the court shall otherwise direct, does not apply to permit a judgment by default, or by the consent of the adverse party, does not extend to matrimonial actions. EEPEEENCES IN JLA.TEIMONIAL ACTIONS. 287 as anomalous on this point. On the apphcation to confirm the report the court lias power and juris- diction to approve or refuse approval for fraud, collusion, or similar causes, but not on the merits. The reference is deemed to have been a trial, and all in- regularities which took place thereon must be reviewed on appeal (Eoss v. Eoss, 31 Hun, 140; Schroeter v. Schroeter, 23 Hun, 230 ; Goodrich v. Goodrich, 21 Weekly Dig. 264). But, contra, Greene v. Greene, 14 Weekly Dig. 159, holding that the report of the referee is not conclusive on the court as to the facts. In Hard- ing V. Harding, 43 N. Y. Superior [J. & S.J 27, it was held that the court could withhold judgment on the ground of insufficiency of the proofs before the referee, but that it could not in addition dismiss the plaintiff's complaint on the merits. § 11. The judgment. — The judgment provides for the custody of the children, for the wife's maintenance, and upon all the rights of the parties depending upon the merits of the case. The form of judgment is the same as that entered upon a referee's report with his opinion, except that a formal recital is embodied therein, confirming the referee's report. General form of judgment in mntrimon.il actions in references to hear and determine. At a special term, etc. Present, Hon. Justice. Title of the case. This cause Laving been duly brought on, on a motion to confirm the report of A. B., sole referee, to hear and determine the issues in this case. Now, therefore, on read- ing and filing the pleadings in this action, the report of the referee, and the evidence taken, and on all the papers and proceedings in this action, by which it appears that all the 288 REFERENCES IN MATRIMONIAL ACTIONS. material facts charged in the complaint are true, now after hearing G. H., attorney for the plaintiff, and I. J., attorney for the defendant, opposed, it is ordered that the report of said referee be and the same hereby is, in all things con- firmed. And it is ordered and adjudged \^for form of judgment annulling marriage, see page 282 / for form, of judgment in divorce, see page '■2,19 y for forms of judgment separating the parties from led and hoard, seepages 280, 281]. APPLICATIONS FOR ALIMONY, ETC. 289 CHAPTER VII. References on Applications for Alimony and Counsel Fees. A. Pendente Lite. § 1. The Slatute. § 2. Upon what Papers the Application is made. Form of Notice of Motion. Form of Petition. § 3. Procedure on the Hearing of the Motion. Form of Order of Reference. § 4. Upon what the Referee is to Report. Form of Referee's Report Recommending Allowance. Form of Referee's Report Against Granting Allowance. Form of Order Confirming Referee's Report. S. Permanent Alimony. A. Pendente Lite. § 1. The statute.— Code Civ. Pro. § 1Y69. Where an action is brought as prescribed in either of the last two articles (divorce and separation) the court roaj in its discretion, during the pendency thereof, from time to time, make and modify an order or orders, requiring the liusband to pay any sum or sums of money, necessary to enable the wife to carry on or defend the action, or to provide suitably for the educa- tion and maintenance of the children of the marriage, for the support of the wife, having regard to the cir- cumstances of the respective parties. The iinal judg- ment in such an action may award costs, in favoi- of or against either party, and an execution may be issued for the collection thereof, as in an ordinary case ; or the court may in the judgment, or by an order made at any time, direct the costs to be paid out 19 290 APPLICATIONS FOR ALIMONY, ETC. of any property sequestered, or otherwise in the power of the court. § ITYa. Where a judgment rendered, or an order made as prescribed in this article, or in either of the last two articles, requires a husband to provide for the education or maintenance of any of the children of a marriage, or for the support of his wife, the court may, in its discretion, also direct him to give reason- able security, in such a manner, and within such a time, as it thinks proper, for the payment from time to time of the sums of money required for that pur- pose, if he fails to give the security, or to make any payment required by the terms of such a judgment or order, whether he has or has not given security therefor ; or to pay. any sum of money which he is required to pay by an order, made as prescribed in section 1769 of this act ; the court may cause his per- sonal property, and the rents and profits of his real property, to be sequestered, and may appoint a receiver thereof. The rents and profits and other property, so sequestered, may be from time to time applied, under the direction of the court, to the payment of any of the sums of money specified in this section, as justice requires. § 1773. Where the husband makes default in pay- ing any sum of money specified in the last section, as required by the judgment or order directing the pay- ment thereof ; and it appears presumptively, to the satisfaction of the court, that payment cannot be enforced by means of the proceedings prescribed in the last section, or by resorting to the security, if any, given as within prescribed, the court may, in its dis- cretion, make an order requiring the husband to show cause before it, at a time and place therein specified, why he should not be punished for his failure to make the payment ; and thereupon proceeding.s must be For a discassion of the law respecting the granting of alimony in • action to annul marriage, see the note to Allen v. Allen, 8 Abb. N. 0. 17~> ; also reported in 59 How. Pr. 27. APPLICATIONS FOR ALIMONY, ETC. 291 taken to punish him, as prescribed in title third of chapter seventeenth of this act. Such an order to show cause may also be made, without any previous ■sequestration or direction to give security, where the court is satisfied that they would be ineffectual. § 2. Upon what papers the applicatioa is made. — Applica- tions for alimony and counsel fees, pendente lite, are usually made upon petition setting forth the wife's lack of resources. Such applications are also frequently made upon aflidavits. Each of these methods has the sanction of long usage. It is intimated in Whitney v. Whitney, 22 How. Pr. 175, that where the apphcation is made upon affidavits, in an action by the wife, they must allege in substance all the facts necessary to make a good complaint in the action. Form of notice of motion for alimony, pendente lite, etc. i Title of the case. Take notice that upon the verified complaint of the plaintiff in this action, and upon the summons herein and proof of service thereof, or [the petition^ or [affidavits] with copies whereof you are herewith served, a motion will be made at the next special term of this court, appointed to be held at the court house in the city of , on tlie day of , at the opening of the court, on that day, or as soon ;as counsel can be heard, for an order directing tlie sr.id defendant to pay, during the pendency of this action, to the said plaintiff, such sums of money as may be necessary to enable the said plaintiff to carry on this action, and pay all the necessary expenses therein, and to secure suitable attor- neys and counsel for the purpose of enforcing her rights in the premises, and also to pay such sum as may be necessary pending said action for the support, maintenance and edu- cation of A. B., daughter of said plaintiff in said complaint iuientioned, and that said plaintiff, pending this action, shall 292 APPLICATIONS FOR ALIMONY, ETC. have the care, custody and control of the said daughter^ A. B., and for such other or further relief as shall be just. Yours, etc., Date. C. D., plaintiG's attorney^ To E. F., defendant's attorney. (From Mann v. Mann, Y5 N. T. 614.) Form of petition for alimony pendente Ilt& Title of the case. To the court of The petition of A. B. respectfully shows to this honorable court : I. That she has brought this action against the defend- ant, her husband, for a separation upon the ground of cruel and inhuman treatment, or [setting forth other cause'] as appears by the complaint hereto annexed, and to which this,, your petitioner, begs leave to refer as part of this her petition. II. Tiiat the action has been actually commenced by the service on defendant by publication of the summons. III. That all the allegations in the complaint set forth are true, as your petitioner is informed and verily believes, and she will be able to substantiate them by proof on the trial, and has a good cause of action thereon, as she is advised by her counsel, C. D., residing at No. street, in the city of , and as she verily believes. And your petitioner states that she is wholly dependent upon her husband for support, and that her said husband, the defendant, wholly neglects to provide for her, and that she is compelled to- bring suit to obtain the means of living. That she is informed and verily believes that her said husband is a man of ample means, and well able to support this your peti- tioner. IV. That your petitioner is wholly destitute of the means of supporting herself pending this action, or of carrying; APPLICATIONS FOR ALIMONY, ETC. 293 ■on the action, and defraying tlie costs and expenses attend- ing the same. V. Tour petitioner further states that she is informed ^nd verily believes that he, her said husband, is the owner of property to the amoun.t of dollars, and that his annual income derived from his business is dollars. Your petitioner therefore prays that the said defendant, ■may, by an order of this honorable court, be required to l^ny your petitioner a i-easonable sum for her support and maintenance, during the pendency of this action, and such sums as may be necessary to enable your petitioner to carry unt of permanent alimony without a reference (Hoffman v. Hoffman, 55 Barb. 269) ; but if a reference is necessary, one is ordered, and the procedure is then the same as in references to determine alimony pendente lite. SUPPLEMENTARY PEOCEEDINGS. 29&' CHAPTER Vin. References in Supplementary Proceedings. § 1. When a Reference may be Ordered. § 2. The Order of Eeference. Form of Order Referring Examination of Judgment Debtor. § 3. Improper Person Selected as Referee. § 4. Waiver of Irregularities by Appearance. § 5. Securing Attendance of Judgment Debtor and Third Party. § 6. Securing Attendance of Witnesses, etc § 7. Adjournments. § 8. Default. § 9. Oath of Rei'eree. Form of Referee's Oath. § 10. The Examination. § 11. The Referee^s Functions. Form of Report of Referee Directed to Report the Evidence. Form of Report of Referee Directed to Report the Facts. Form of Deposition. § 12. Appointing a Receiver on Referee's Report. Form of Notice of Motion for the Appointment of a Receiver. Form of Order Appointing Receiver. § 13. Costs and Disbursements. § 1. When a reference maybe ordered. — Three distinct remedies, each of which is a special proceeding, are provided by the Code of Civil Procedure under the title, "Proceedings Supplementary to an Execution against Property," (§ 2432) namely: (1.) An order or Much assistance in the preparation of this chapter has been afforded' by the treatise of Riddle and Bullard on Supplementnrj' Proceedings. ■300 SUPPLEMENTARY PROCEEDINGS. warrant agaiost the judgment debtor after the return of the execution. (2.) The same, after the issuing and before the return of the execution, (3.) an order against a third party after the issuing, and either before or after the return of an execution. In these proceedings references may be directed as follows : Section 2442, Code Civ. Pro. An order, requiring a person to attend and be examined, made pursuant to any provision of this article, must require him so to attend and be examined, either before the judge to whom the order is returnable, or before' a referee deignated therein. Where the examination is taken before a referee, he must certify to the judge to whom the order is returnable, all the evidence and the ■other proceedings taken before him. § 244:3. At any stage of the proceedings, the judge to whom the order is returnable, may in his discre- tion, make an order, directing that any other examin- ation, or testimony, be taken by, or that a question arising be referred to, a referee designated in the order. Where a question is so referred, the referee may be ■directed to report either the evidence or the facts. The refei'ee may be appointed in either of the three remedies provided by section 2432, Code Civ. Pro. (E. .& B. Supp. Pro. 129). The practice varies in different courts as to when references will be directed. The superior court of the city of New York, as far back as ,1851, in HolUster v. Spafford, 3 Sandf. 742 ; s. C, 1 Code E. [N. S.] 120, to settle its practice, announced that as a general rule a reference in these proceedings would not be ordered against the wishes of either party. If the parties agreed, or if it became apparent that a difficult or protracted investigation must ensue and the examinants have counsel, a reference would be directed. In the court of common pleas, in the city of New York, the practice is to direct a reference in proceed- ings on a judgment rendered in a district court where .the transcript has been filed and docketed in the county SUPPLEMENTARY PROCEEDINGS. 301 clerk's office (E. & B. Supp. Pro. 132). As a general rule, in the other courts, in and out of the city of New" York, the practice is not to order a reference unless the moving party requests it. The referee appointed to examine the judgment debtor need not be a resident of the county of the debtor (Wilson v. Andrews, 9 How. Pr. 39). § 2. The order of reference. — The referee, where the judge decides to let the examination take place before one, may be appointed in the order requiring the judg- ment debtor to appear and be examined. It is not necessary that the judgment debtor should first be made to appear before" the judge (Green v. Bullard, 8 How. Pr. 313). The ordinary practice is to appoint the referee in the order requiring the party's appear- ance. The order may direct the debtor (o appear before the judge on a day specified, after the close of the examination before the referee (Sickles v. Hanley,. 4 Abb. N. C. 231). While an order requiring the judg- ment debtor to appear and be examined by a designated referee is in force, and he attends in pursuance thereof, another order requiring the judgment debtor to appear and be examined before a different referee is illegal (Allen V. Starving, 26 How. Pr. 57). But if the partj' makes default in appearing, another referee may be appointed in the discretion of the judge (Pardee v. Tilton, 83 N. Y. 623; s. C, 11 Week. Dig. 455). The order of reference may, under section 24-13, Code Civ. Pro., be to report either the evidence or the facts. The procedure on the reference would be the same in each case. The report, however, woiild in the latter case give only the facts. The reference to report the evidence is the usual practice. 302 SUPPLEMENTARY PROCEEDIXGS. Form of order referring examination of judgment debtor. Title of the case. It ajipeaiing to my satisfaction by the affidavit of A. B.. plaintilf [or attorney for the above named plaintif,\ tliat judgment has been recovered in this action against the above named defendant, in the court of , on the day of , for dollars, damages and costs ; that the said judg- ment, exclusive of costs, V7as for more than twenty-five dol- lars, that the judgment roll was filed in the office of the clerk -of the county of , on the day x>f [that a transcript 4f said judgment was duly filed and docketed in the office ■of the clerh of the county of , on the day of J. That thereafter an execution upon said judgment against the pronerty of the defendant , was on the day of , duly issued to the sherifE of the county of , where said defendant resides \or where said defendant has a place for the regular transaction of business in person, or where the judgment roll is filed, or where the transcript of the judgment is file,d\ and that said execution has been returned wholly \or partly'\ unsatisfied, and that said judgment still remains wholly \or partly'\ unpaid; and that no previous application has been made for this order, and that the afore- said judgment was i-endered upon the judgment debtor's appearance \or personal service of the suTnmons upon him']. I do hereby order and require the above named defendant to appear before C. D.,Esq., of No. street, in the city of , counselor at law, whom I hereby appoint referee to take and report the evidence herein to me [or take the exam- ination herein and report the facts to me] at his office, JSTo. street, in the city of , on the day of , at o'clock in the noon, and on such further days as said referee shall name, to be examined and make discovery on oath concerning his property'. And the said defendant is hereby forbidden to transfer, or make any other disposition of the property belonging to him, not exempt by law from SUPPLEMENTARY PROCEEDINGS. 303 execution, or in any other manner to interfere therewith, until further order in the premises. Dated at , the day of E. F., J. The order referring the examination of a third per- son is in the same form as the preceding, except that among the formal recitals a clause is added, stating that the third person has personal property of the judgment debtor exceeding ten dollars in value, or is indebted to him in a sum exceeding that amount. § 3. Improper person selected as referee. — The referee must have the same qualifications as any other referee {see § 1, page 35). If it can be shown that the referee is hostile to the judgment debtor, or an improper person, the judgment debtor should apply to the judge vi'ho made the order of reference to vacate the same. A refusal to be sworn before such a referee, is not the proper mode of making the objection. Such action wiU amount to a contempt (Tremain v. Eichardson, 68 N. Y. 617). § 4. Waiver of irregularities by appearance. — Irregulari- ties in the granting of the order must reasonably be taken advantage of by a motion before the judge who granted the same, to set the order aside (Diossy v. West, 1 Month. Law Bull. 23 ; Wilcox v. Harris, 59 How. Pr. 262). It will not do to reserve the objec- tions until the party appears before the referee. The referee has no power to pass upon such objections. An appearance before the referee, without objection previously made, will be deemed a waiver of irregulari- ties (Bingham v. Disbrow, 37 Barb. 24 ; Utica City Bank v. Buel, 17 How. Pr. 49S), but not of jurisdic- tional defects (Bingham v. Disbrow, supra). § 5. Securing attendance of judgment debtor and third patty with books, etc. — This is accomplished by means of 304 SUPPLEMENTAEY PROCEEDINGS. a summons issued by the referee. The summons usual in interlocutory references suffices. The judg- ment debtor will be guilty of a contempt for a refusal to obey the same (Eedmond v. Goldsmith, 2 Month. L. B. 19). (For form and requisites, consult the chapter on interlocutory references). § 6. Securing attendance of witnesses, etc. — This is done by a subpoena, or a subpoena duces tecum. The sub- poena should be issued by, and under the baud of the referee (People ex rel . Jacobs v. Ball, 22 Week. Dig. 275 ; Knowles v. De Lazare, 8 N. Y. Civ. Pro. 386). It should be issued as out of the court in which the judg- ment was obtained (People ex rel. Brunett v. Dutcher, 3 Abb. Pr. [N. S.J 151). Instead of resorting to a subpoena, a referee may, under Code, sections 867-869, direct the party to be ex- amined to bring books and papers by order (Pruden v. Tallman, 6 Civ. Pro. 360). And this applies to cor- porations as well as to individuals (Hohues v. Stietz, & Civ. Pro. 362). {For form of subpoena, seepage 68). § 1. Adjournments. — Section 2444, Code Civ. Pro. The judge or referee may adjourn any proceedings, under this article, from time to time as he thinks proper. The referee is vested with power for any good cause to grant an adjournment (Mason v. Lee, 23 How. Pr. 46G), and this even against the judgment debtor's ob- jection (Kaufmann v. Thrasher, 10 Hun, 438)'. For an arbitrary refusal on the part of a referee in supple- mentary proceedings to adjourn, the party would be justified in withdrawing, leaving the other party to apply for an order to punish the disobedience, when the entire subject would be examined (Mason v. Lee, supra). § 8. Default. — The temporary absence for a few min- SUPPLEMENTARY PROCEEDINGS. 305 utes of the referee, before whom the order is return- able, would not justify the judgment debtor in leaving or treating the proceedings as abandoned. A reason- able time must be allowed for him to reach his office (Eeynolds v. McElhone, 20 How. Pr. 45i). This case was decided in respect of a judge, but doubtless the principle is applicable to a referee. In New York city a half hour is deemed a reasonable time. The same rule applies to taking the party's default. §9. Oath of referee.— Section '2445, Code Civ. Pro. Unless the parties expressly waive the referee's oath, a referee appointed as prescribed in this article, must, before entering upon an examination, or taking testi- mony, subscribe and take- an oath, that he will faith- fully and fairly discharge his duty upon the reference, and make a just and true report, according to the best of his understanding. The oath may be administered by an officer designated in section 843 of this act, and must be returned to the judge, with the report or testi- mony. Form of referee's oath. TiUe of the case. I, A. B., appointed referee herein, do swear that I will faithfully and faii-ly discharge my duty upon this reference, and make a just and true report according to the best of my understanding. A. B., referee. [For the rules in detail respecting the oath of a ref- eree, and waiver thereof, consult pages 61 to 64.] § 10. The examination. — Section 2444, Code Civ. Pro. Upon an examina,tion under this article, each answer of a party or witness examined must be under oath. A corporation must attend by, and answer under the oath of, an officer thereof ; and the judge may in his 20 306 SUPPLEMENTARY PROCEEDINGS. discretion specify the officer. Either party may be ex- amined as a witness in his own behalf, and may pro- duce and examine other witnesses, as upon the trial of an action [as to adjournments, see ^ 7 of this chapter]. The oath to be administered to the witnesses may be the usaal oath [see pages TO to T2], or it may be varied to suit the exigencies and cover the points of investiga- tion on the particular inquiry. The judgment creditor is not bound actually to ex- amine the debtor, though he may have called him. He may confine his examination to witnesses (Graves v. Lake, 12 How. Pr. 33). The scope of the investigation under the present practice is very broad. Section 2460, Code Civ. Pro. provides : "A party or a witness, examined in a special proceeding, authorized by this article, is not excused from answering a question, on the ground that his ex- amination will tend to convict him of the commission of a fraud ; or to prove that he has been a party or privy to, or knowing of, a conveyance, assignment, transfer or other disposition of property for any pur- pose ; or that he or another person claims to be entitled as against the judgment creditor, or a receiver ap- pointed or to be appointed in the special proceeding, to hold property, derived from or through the judgment debtor, or to be discharged from the payment of a debt which was due to the judgment debtor, or to a person in his behalf. But an answer cannot be used as evi- dence against the person so answering, in a criminal action or criminal proceeding." The early cases holding that the judgment creditor was hmited to an inquiry concerning property in the debtor's name, and that he could not follow up trans- fers of such property, may safely be deemed overruled. Leading questions are allowed upon the examination (Corning v. Tooker, 5 How. Pr. 16). The creditor is entitled to a. full and searching exam- ination of the debtor, the third party, and the witnesses, not only of property which the debtor has at the time. SUPPLEMENTARY PROCEEDINGS. 307 but of all recent transfers of property (Lathrop v. Clapp, 40 N. Y. 328 ; afE'g 33 How. Pr. 423 ; Forbes V. Willard, 54 Barb. 520 ; Mechanics' and Traders' Bank v. Healy, 14 Weekly Dig. 120 ; aff'd 89 N. Y. 605 ; ^Champliu v. Stoddart, 17 Week. Dig. 76 ; Eiddle and BuUard on Supplementary Proceedings, pages 156 ,to 164). With respect to examinations after z^ general assign- ment by the debtor for the benefit of creditors, the courts do not seem to have fully settled the scope of ihe inquiry. In Seligman «. Wallach, 16 Abb. N. C. 3l7j it was held that the judgment creditor on such ^xn investigation is not confined to property acquired since i;he assignment. In Schloss v. Wallach, 16 Abb. N. C. 319, n., it was held, that where an action has been brought to set aside a voluntary assignment on the ground of fraud, the judgment debtor will be limited to such property, and in Wilson v. Daggett, 9 Civ. Pi'O. 408, the same ruling was made in respect to a •creditor who has proved his claim against the debtor and thereby elected to join in the assignment. iTie judgment creditor is entitled to one complete examination. He cannot harass the debtor by success- ive examinations. After he has had one opportunity to examine the debtor, very good cause, such as sub- sequently acquired property, etc., must be shown before another investigation will be ordered (Oanavan V. McAndrew, 20 Hun, 46 ; Orr's Case, 2 Abb. Pr. 457 ; Hudson V. Plots, 11 Paige, 180). A refusal to obey a direction of the referee, or to attend before him, may be punished by the judge as a contempt (§ 2457, Code Civ. Pro.). The procedure in such a case would be to report the fact constituting the contempt to the ]udge by aflfidavit. [For the pro- .cedure in detail, consult the chapter on contempt, page 169]. § 11. The referee's functions. — Whether a referee may liimself ask questions on the examination has not been 308 SUPPLEMENTARY PKOCEEDIXGS. decided. It is probable that if the questions are, im themselves unobjectionable and assist the investiga- tion, the mere fact that the referee asked the questions- would constitute no impropriety, but it is clear, that if the referee attempts in a meddlesome, oflBcious, or partisan spirit to ask the questions, his action is entirely out of order (Peo v. Leipzig, 52 How. Pr. 410). When the reference is to report the evidence, the referee reports the testimony in the form of deposi- tions annexed to his report. Where it is tq report the- facts, he does not report the evidence at large (Dorr v. Noxon, 5 How. Pr. 29). After a witness or party has- testified, the referee may, in the presence of counsel for the judgment creditor, allow a supplementary state- inent to be made in explanation of prior testimony (Corning v. Tooker, 5 How. Pr. 16). A witness can- not be compelled to subscribe his name to a deposition, which is incorrect (Sherwood v. Dolen, 14 Hun, 191). The referee reports to the judge who made the order for the examination (Smith v. Johnson, 7 How. Pr, 39). Form of report of referee directed to report the eyidence. Title of the case. To the Hon. , a justice of the court of I, the undersigned, to whom, by an order dated the day of , it was referred to take the examination of C. C, do respectfully report, that I have been attended by said C. D., and taken said examination, the whole of whicb is hereto annexed. All of which is respectfully submitted. Date. A. B., referee^ SUPPLEMENTARY PROCEEDINGS. 309 Form of report of referee directed to report the facts. Title of the case. To the Hon. , a justice of the court of I, the undersigned, to whom by an order dated the -day of , it was referred to take the examination of C. D., and report the facts, do respectfully report that I have been attended by said C. D., and taken said examination, the whole of which is hereto annexted. I find the following facts, that said 0. D. has a claim under the will of P. H., for a legacy of dollars, that said P. H. died on or about the day of , but that probate of his will has not yet been granted, etc. All of which is respectfully siibmitted. Date. A. B., referee. The referee's oath must be annexed to the report '{§ 2445, Code Civ. Pro.). For a form of referee's oath, £ee section 9 of this chapter. Form of deposition. Title of the case. Examination of A. B., a judgment debtor, in supplemen- tary proceedings before me, C. D., appointed by order, ■dated the day of , referee to take and report such examination, A. B., being duly sworn, says: I reside at 2fo. street in the city of , etc. Taken, subscribed and sworn to | A B before me this day of . 3 C. D., referee. § 12. Appointing a receiver on referee's report. — Section :2464, Code Civ. Pro., provides for the appointment of & receiver by the judge to whom the order requiring ihe examination is returnable. In the case of a refer- 310 SUPPLEMENTARY PROCEEDINGS. ence ordered, the judge who granted the order, and to- whom the referee must report, would be the proper judge to appoint the receiver (Smith v. Johnson, 7 How. Pr. 39 ; Ball v. Goodenough, 37 How. Pr. 479). In respect to notice to be given, the section directs that "at least two days, notice of the application for the order appointing a receiver, must be given person- ally to the judgment debtor, unless the judge is satis- fied that he cannot, with reasonable diligence, be found within the State ; in which case, the order must recite that fact and may dispense with notice, or may direct notice to be given in any manner which the judge thinks proper. But where the order to attend and be examined, or the warrant, has been served upon the judgment debtor, a receiver may be appointed upon the return day thereof, or at the close of the examina- tion, Avithout further notice to him." A verbal notice to the judgment debtor at the close of the examination of an application for the appointment of a receiver, is insufficient. It must be in writing (Ashley v. Turner, 22 Hun, 226. Section 2465, Code Civ. Pro., provides for notice to judgment creditors in pending actions. rorm of notice of motion for tlie appointment of a receiver. Title of the case. Take notice that upon the report of A. B., referee herein^ to take and report the evidence upon an examination in sup- plementary proceedings, an application will be made to Hon. , at , in the city of , on tlie day of , at o'clock in the noon, or as soon as counsel can be heard, for an order appointing a receiver of the property of C. D., the judgment debtor, and for an allowance for costs and disbursements. And for such other or further relief as may be just. CD., To E. F. Attorney for jiidgment creditor. SUPPLEMENTARY PROCEEDINGS. "11 Form of order appointing receiver. Title of the case. * Supplementary proceedings having been instituted upon the judgment in this action against C. D., the judgment debtor in the above entitled action, by an order heretofore made by me, and the said 0. D., having been examined therein on oath concerning his property, in pursuance of said order, now on filing the affidavit and order of examina- tion herein, and the report of A. B., referee, with the evi- dence thereto annexed, and proof of timely and personal service of notice of this application on C. D., the said judg- ment debtoi", on motion of P. Q.,of counsel for the plaintiff, I hereby order that M. G. be, and he hereby is appointed receiver of the property of C. D. That such receiver, before entering upon the execution of his said trust, exectite to the People of the State of New York, a bond with suffi- cient sureties, to be approved by me, in the penalty of dol- lars, conditioned for the faithful discharge of the duties of such trust, and file the said bond with the clerk of county, and that said receiver, upon filing such bond, he- invested with all rights and powers as receiver. I order that the plaintiff recover dollars costs, and dollars, his disbursements in these proceedings, to be paid to him out of any money which has come, or may oome, to , the hands of the receiver. § 13. Costs and disbursements. — The party's disburse- ments are his necessary expenses. The referee's fees, which in amount would be the same as in any ordi- nary reference, viz. : Six dollars for each day spent in the business of the reference would, of course, be included in the term " disbursements." In addition ta the disbursements, the judge is empowered to allow either successful party a sum not exceeding thirty dollars (Code, §§ 2455, 2456). ♦Adapted from Riddle and Bullard on Supplementary Proceedings, page 535. 312 DISCOVERINa LIFE TENANT. OHAPTEE IX. Ebferences in Proceedings to Discover the Death OF A Tenant for Life. § 1. When the Proceedings are Maintainable. § 2. Contents of Petition. Form of Petition. § 8. The Procedure Thereupon. Form of Notice of Presentation of Petition. Form of Order of Reference. § 4. The Reference. § 6. The Referee's Report. Form of Referee's Report § 6. Order thereupon. Form of Order on Referee's Report. § 7. Fees of Referee and Costs. § 1. When the proceedings are maintainable. — Section 2302, Code Civ. Pro. A person entitled to claim real property, after the death of another who has a prior estate therein, may, not oftener than once in each calendar year, apply by petition to the supreme court, at a special term thereof, held within the judicial dis- trict wherein the property, or a part thereof, is situ- ated, for an order, directing the production of the ten- ant for hfe as prescribed in this title, by a person, named in the petition, against whom an action of ejectment to recover the real property can be main- tained, if the tenant for hfe is dead, or where there is no such person, by the guardian, husband, trustee, or other person, who has, or is entitled to the custody of the person of the tenant for Hfe, or the care of his estate. It has been held that a proceeding cannot be insti- tuted under this section to require the production of a DISCOVERING LIFE TENANT. 313 devisee who holds a base or determinable fee, liable to be defeated by death without issue (Matter of Hyde, 41 Hun, Y2). § 2. Contents of petition.— Section 2303. The petition must be in writing and verified by the affidavit of the petitioner to the effect that the matters of fact therein set forth are true. It must contain: (1.) A description of the real property, and a state- ment of the petitioner's interest therein, and of such other facts as show that the case is within the provis- ions of the last section. (2.) An averment that the petitioner believes the person upon whose life the prior estate depends is dead, together with a statement of the grounds upon which the petitioner's belief is founded. Form of petition. Supreme court. In the matter of the application of A, B., to discover the death of 0. D., tenant for life. To the supreme court of the State of Eew York : I. The petition of A. B. respectfully shows to the court that on, to wit, the day of , 18 ,- one E. F. died at the city of , seized and possessed of the follow- ing described real estate [wisert description]. That by. the will of said E. F., duly admitted to probate and recorded in liber , of wills, page , in the office of the surro- gate of county, a copy of which is hereto annexed, there was devised to your petitioner an estate in fee in the said premises upon the death of one K. G. II. That your petitioner is informed and believes that said K. G. is dead. That the grounds upon which your peti- tioner's belief is founded are [stating same]. HI. That one M. N. is now in possession of said prem- ises, claiming to be a tenant under said K. G. That this 31-i- DISCOVERING LIFE TENANT. is the first and only application whicli your petitioner has made for the order herein requested [or that no application has been made for this order since one calendar year from the day of .J IV. Wherefore your petitioner prays for an order direct- ing the production of the said K. G. by the said M. IS.., and for such other and further relief as may be just. Date. A. B., County of , ss.: A. B. being duly sworn says that he is the petitioner named in the foregoing petition, by him subscribed, and that the matters of fact therein set forth are true. Sworn to before me this ] day of . j § 3. The procedure thereupon. — A copy of the petition and petitioner's affidavit, together with notice of the time and place at which the petition will be presented, must be personally served, at least fourteen days before its presentation, upon the person required to produce the life tenant (Code Civ. Pro. § 2304). Upon the pre- sentation of the petition and affidavit, with due proof by affidavit, of the service of a copy thereof, and the notice of the hearing, the court, either issues an order for a commission where there is presumptive proof that the hfe tenant is or was at a place certain witliout the State, for the purpose of obtaining a view of the life tenant, and to take testimony respecting his identity (Code Civ. Pro. § 2311), or makes an order directing the adverse party, at a time and place therein speci- fied, to produce the life tenant before the court or a referee, or in default thereof, to prove that he is living (§ 2305). DISCOVERING LIFE TENANT. 315 Form of notice of presentation of petition. Title of the proceeding. Take notice, that the petition of A. B., a copy of which is hereto annexed, will be presented to the supreme court, at a special term thereof, to be held at , on the day of , at the opening of the court on that day, or as soon as counsel can be heard, and an application will be made for an order directing you to produce the life tenant, as the- court shall order. Date. Tours, etc., P. B., Attorney for petitioner. Form of order of reference. At a special term, etc. Present, Hon. Justice. Title of the proceedings. On reading and filing the petition of A. B., verified the- day of , praying for an order requiring the pro- duction of the above named life tenant, it appearing that a copy of said petition, including the affidavit verifying the- Bame, together with notice of the time and place of the ap- plication for this order, were personally served at least four- teen days before the presentation of said petition, it is ordered, that M. N., now in possession of the premises, pro- duce the said life tenant before O. P., a referee, who is hereby appointed for that purpose, at his office, No. street, in the city of , on the day of , 18 , at o'clock in the forenoon, or in default thereof,- prove that said life tenant is living. § 4. The reference. — A certified copy of the order re- quiring the production of the life tenant, or proof that 816 DISCOVERING LIFE TENANT. he is living, must be served at least fourteen days be- fore the time therein specified upon the person required to make the production or proof, or upon his attorney. Upon presentation of proof of service by affidavit, the referee, hears the' allegations and proofs respecting the identity of the party produced, or concerning the failure to produce him, and whether he is living. The referee has the same powers as a referee appointed for ihe trial of an issue in an action (Code Civ. Pro. § 2306). Provision is made where the life tenant is im- prisoned or detained for any cause, except upon sentence for a felpny, for bringing him before the referee by writ of habeas corpus (Code Civ. Pro. § 2307). §5. The report.— Section 2308, Code Civ. Pro. The referee must deliver his report to the petitioner, or file it with the clerk, within ten days after the case is closed. He must state therein whether any person was or was not produced before him, as being the per- son whose death is in question. He must append thereto, in the form of depositions, the proofs, if any, respecting the identity of any person so produced, with ^;he person whose death is in question ; or, if no one is so produced, upon the question whether the latter is hv- ing. He must also state in his report his conclusions .upon the questions controverted before him. Form of referee's report. Title of the proceeding. To the supreme court of the State of New York : Pursuant to an order of this court, dated the day of , referring the above entitled matter to me, I do respectfullj report that, before proceeding in this matter, I took the oath prescribed by section 1016 of the Code of Civil Procedui'e. I attended at my office on the dav •of , and there was produced before me a person named r. G. bj M. N., who by the terms of the order of reference DISCOVERING LIFE TENANT. 31 T aforesaid, was required to produce the life tenant. I took the depositions of said P. Gr. and M. N. respecting the iden- tity of said P. G. with the person whose death is in question,, and have annexed the sanae to this report. My conclusion is that the said P. G. and the person whose- death is in question, are one and the same person, and that the order requiring the production of the life tenant before me has been fully complied with. Date. O. P., Eeferee. § 6. Order thereupon. — Upon the referee's report, au appropriate order is made, depending upon the facta found, either (1) dismissing the proceedings with costs to the petitioner (Code Civ. Pro. § 2309), or (2) declar- ing that the life tenant is presumed to be dead for the purpose of the proceeding, and directing that the petitioner be forthwith let into possession of the real property, as if the hfe tenant was actually dead (§ 2310), or, upon presumptive proof that the person whose death is iu question is, or lately was, at a place certain without the State, appointing a commission for the purpose of obtaining a view of the person and of tak- ing such testimony respecting his identity as the par- ties produce, and staying the proceedings until the return of the commission (§ 2311). rorm of order on referee's report. At a special term, etc. Present, Hon. Justice. Title of the proceeding. Upo.n filing the report of A. B., referee, dated the day of , before, whom it was by an order of this court, dated the day of , ordered that M. N. produce the life tenant above named, or in default thereof, prove that saidJ 518 DISCOVERING LIFE TENANT. life tenant is living, and upon the proofs appended to said report, it appearing to the satisfaction of the court that the said M. ]S".^ has fully complied with said order, and has pro- duced the said life tenant [or has proved his existence], it is ordered, that the petition of K. Y., verified the day of , upon which the- said order of reference was granted, be and the same hereby is dismissed, and the said petitioned is hereby ordered to pay to the said M. IS., the sum of dollars, the costs of these proceedings. § Y. Fees of referee and costs. — The referee is entitled to the same fee as a referee appointed for the trial of an action (Code Civ. Pro., § 2306) ; viz., six dollars for each day spent in the business of the reference (see page 158). If costs are awarded they must be fixed by the court B.t a gross sum not exceeding fifty dollars (Code Civ. Pro., § 2316). EEFEEENCES IN SUEKOGATE'S COURTS. 319 OHAPTEE X. Eefeeences in Surrogates' Courts. § 1. Source of Surrogate's Power to Refer. § 2. Qualiflcations of the Referee in Surrogates' Courts. § 3. References upon Specific Questions of Fact, in Proceedings Other than for Probate or Revocation of Probate of a Will. Form of Order of Reference to Report upon a Specific Question of Fact. § 4. References to Examine Accounts. Form of Order of Reference to Examine Accounts. § 5. References in Proceedings for Probate or the Revocation of the Probate of a Will. Form of Consent to such Reference. Form of Order of Reference on Foregoing. Form of Order Directing Assistant" to take Testimony, § 6. The Report. Forms of Report. Form of Report upon Examination of Account. Form of Report in Probate Proceeding. § 7. Confirming the Report. § 8. Referee's and Witnesses' Fees. § 1. Source of surrogate's power to refer. — Section 2546, Code Civ. Pro. In a special proceeding, other than one instituted for probate or revocation of probate of a will, the surrogate may, in his discretion, appoint a referee to take and report to the surrogate the evi- dence upon the facts, or upon a specific question of fact, to examine an account rendered, to hear and determine all questions arising upon the settlement of such an account, which the surrogate has power to ■determine ; and to make a repoit tliereon, subject, however, to confirmation by the surrogate. Such a referee has the same power, and is entitled to the same ^compensation as a referee appointed by the supreme 320 REFERENCES IX SURROGATES' COURTS. court for the trial of an issue of fact in an action ; and the provisions of this act, applicable to a reference by the supreme court, apply to a reference, made a& prescribed in this section, so far as they can be applied in substance, without regard to the form of the pro- ceeding. The surrogate of the ccfuuty of New Tork^ may, on the written consent of all the parties appear- ing in a probate case, appoint a referee, or may, in his discretion, direct an assistant to take and report the testimony, but without authority to pass upon the issues involved therein. Eeferences in surrogates' courts may be classified with respect to form into (1), references to take testi- mony and report the same, (2) references to take testi- mony and report with opinion, (3) references to hear and determine, subject to confirmation by the suiTogate. In the first and second classes of references, the referee has no power to determine any questions, and occu- pies the same position which a referee appointed in a like case, in a court of general jurisdiction. In the third class, the referee is vested with the same powers as a referee appointed by the supreme court for the trial of an issue of fact in an action, except that his rulings must be confirmed by the surrogate. No matter, however, what the form of reference is, final ' action cannot be taken upon the referee^'s report, with- out an order or decree by the surrogate. In a broad sense, the functions of a referee in a surrogate's court, are, to advise the surrogate, and to supply him with findings upon which he can rely. He in.aj accept or reject the referee's conclusions. As to filing excep- tions to the report, see section 7 of this chapter. § 2. ftuaiifications of the referee in surrogates' courts. — By section 90 of the Code of Civil Procedure (quoted in fun on page 37) no clerk, deputy clerk, special deputy clerk, or assistant in the clerk's office of the surrogate's court, within either of the counties of New York or REFERENCES IN SURROGATES' COURTS. 321 Kings, can act as referee, except by the written consent of all the parties to the action or special proceeding, other than the parties in default for failure to appear or plead. Section 2511, Code Civ. Pro., however, dis- tinctly provides that no clerks or other persons employed in any capacity in the surrogate's office, are to act as referees in any matter before the surrogate, without making any exception in favor of New York or Kings counties. The practice in these excepted counties is to direct references to clerks and assistants in the surrogates' courts respectively on a written consent of all the par- ties. The two sections of the Code have been inter- preted as standing together and allowing such course (Estate of Thorn, 4 Month. Law Bull. 48 ; Estate of Cooper, 2 How. Pr. [N. S.J 38). And in relation to the official stenographer employed in the surrogate's court of New York county, it lias been held that he has not such a connection with the surrogate's court or office, as to bring him within the scope of either sections 90 or 2511 of the Code of Civ. Pro. to jTiake a reference to him illegal (Estate of Cooper, 2 How. Pr. [N. S.J 38). If the person appointed discharges the functions of a referee, it matters not that he was styled an auditor in the order appointing him (Buchan v. Eintoul, 70 N. Y. 1). § 3. References upon q)ecifio questions of fact in proceed- ings other than for probate or revocation of probate of a will. — Such references the surrogate has power to order at any stage of a special proceeding. The reference would be to report to the surrogate the evidence upon the facts, and would proceed hke an interlocutory ref- erence in the supreme court. 21 322 REFEEENCES IN SUEKOQATES' COUETS. Form of order of reference to report upon a specific question of fact. At surrogate's court held in and for the county of , at the court house in the city of , on the day of Present, Hon. Surrogate. Title of the proceeding. The petition of A. B., verified the day of , having been presented to the court praying for \recitm^ the relief asked] and a citation issued to [reciting the jurisdictional facts\ It is ordered, that C. D. be, and he hereby is appointed referee, to take proof of the facts set forth in the said petition, and report the evidence upon such facts to this court. That the first hearing before said referee take place at his office, No. street, in the city of , on the day of \or proceed on days notice']. A. B., surrogate. § 4. Eeferenoes to examine accounts. — In those refer- ences which are usually ordered in cases of contest, or where the parties on the return of the citation do not appear and consent to the account, the referee takes the place of the officer formerly called an "aud- itor." The referee is usually given power to hear and determine all questions arising upon the settlement of the account, which the suiTogate has power to deter- mine, subject to confirmation by the surrogate (Code Civ. Pro. § 2546). The referee in such case has the same power as a referee appointed in the supreme court to try an issue of fact (Id. Matter of Niles, 14 N. Y. State Eep. 638). The contestant is entitled to appear by counsel before the referee to examine the account- ing party (Matter of Eich, 3 Eedf. 177). The attend- ance of witnesses is procured by subpoena. The ^\"it- nesses are not required to sign their testimony (Matter EEFERENCES IN SURROGATES COURTS. 323 of Eussell, 3 Dem. 3Y7). The vouchers and docu- ments are dehvered to the referee, who examines them either in the surrogate's office or at a place within his own selection. Form of order of reference to examine acconnts. A.t surrogate's court, etc. Present, Hon. Surrogate. In tlie matter of the judicial ■ settlement of tlie account of A. B., as executor of C. D., deceased. The said A. B., having filed account [and objections thereto having heen also filed hy J. It is ordered, that it be referred to E. F., to inquire into the necessary juris- dictional facts, to examine said account and objections, to iiear and determine all questions arising upon the settlement of said accoimt wliich the surrogate has power to determine, and to make report to the court with all convenient speed. § 5. Eeferences in proceedings for probate or the revocation ai the probate of a will. — Outside of New York county no reference can he ordered in this class of proceedings. In New York county, a referee may be appointed on the written consent of all parties appearing in the case (Code Civ. Pro. § 2546), or the surrogate may in his discretion direct an assistant to take and report the testimony, but without authority to pass upon the is- ■sues involved therein (Id.). Where a referee is ap- pointed, he is to hear and determine subject to con- firmation by the surrogate. The taking of testimony by an assistant may be ordered without the consent of the parties, and is not regarded as a "reference," though the officer is empowered, under the interpreta- tion of the section given by the present surrogate, to pass upon the admissibility of testimony. The referee S24 is, of course, entitled to fees^ but the assistant ap- pointed to take the testimony is not, unless he is the stenographer of the court, in which case he is entitled to the legal fees for furnishing copies of the testimony. The assistant makes no report. He is regarded as an arm of the court, and simply takes the testimony and delivers it to the surrogate for his decision. The "written consent should, in New York county, be upon a separate piece of paper, and not endorsed upon the' order of reference. Where the consent of an infant to a reference in this class of proceedings is improperly ' obtained, the reference wiU not necessarily be set aside,, especially at the instance of the party who procured the reference, but the question wiU depend, whether on the whole case, such setting aside would or would not be for the benefit of the infant (Estate of Cooper, 2 How. Pr. [N. S.J 38). Form of consent to snch reference. Title of the proceeding. \_After reciting the jurisdictional facts.'] It is liereby stipulated and agreed, that the questions herein be referred to A. B., counselor at law, to hear and detern>ine the same, subject to confirmation by the surrogate, and that an order be entered to that effect upon filing this stipulation. Date. O. P., Special guardian of M. W., infant, "W. X., Attorney for executors. BENEBENCE8 IN SURROGATES' COURTS. 325 Form of order of reference on foregoing'. At surrogate's court, etc. Present, Hon. Surrogate, In the matter of proving the last will and testament of A. B., deceased, as a will of property. On reading and filing the stipulation in the above entitled proceeding, dated the day of , now on motion of ■0. D., attorney for the executors, it is ordered that the is- sues herein, be, and the same are hereby referred to E. F., to hear and determine, subject to confirmation by the surro- gate, and that said E. F. report to the court with all con- venient speed. [Furilier directions may be added as to the time when the Jiearing shxiU tahe place, as to notice, etc.} M.E"., Surrogate. Form of order, directing assistant to take testimony. At surrogate's court, etc. Present, Hon. Surrogate. Title of the ^proceeding. By virtue of the authority vested in this court, and in the surrogate of this county by section 2546 of the Code of ■Civil Procedure, it is hereby ordered, that the testimony in the above entitled proceeding now pending in this court, being a special proceeding for the probate of a will [or for the revocation of the probate of a will] be taken by E. F. U., assistant to the surrogate, he to report the same to this court iov its consideration. M. K, Surrogate. 326 REFERENCES IN SURROGATES' COURTS. § 6. The report.— The referee's report is in writing, and the same principles are apphcable to it as govern reports in references in the supreme court. Forms of report. Form of report npon examination of account. Title of the court and the proceeding. To the Hon. , surrogate. I, A. B., the referee in the above entitled proceedingr pursuant to an order, made herein and dated the day^ of , directing me. to examine the account iiled herein^ and to report thereon, do respectfully report. I. That before proceeding to examine said account, I took the oath prescribed by law, ■which is hereto annexed. II. That I have examined tlie said account and voueliers- and have been attended by {specifying the parties who attended] and I find tliat said account is complete, correct,, and regular in all respects [or thai the said account is incor- rect in the following particulars, specifying them in detail.'] A. B.. referee. Form of report in probate proceeding. Title of the court and proceeding. To the surrogate of the county of New York. Pursuant to an order of this court, duly entered herein, the day of , whereby this matter was referred to me to hear and determine the same, subject to confirmation by the surrogate, I do respectfully report, that I took the referee's oatli, as prescribed by section 1016 of the Code of Civil Procedure, wliich oath is hereto annexed. That I have been attended by [specifying the names of the parties^ attending] and taken testimony, wliicli is herewith filed and forms a part of tliis report, and I do find. As matters of fact; 1. That the decedent, about two weeks before her death. REFERENCES IN SURROGATES' COURTS. 327 and at about ten o'clock in tho morning of tne day of J subscribed the propounded paper, in. the presence of both of the subscribing witnesses. II. That she then and there declared said paper to be her last will and testament. III. That she asked the subscribing witnesses to sign as such, and that they did so in her presence, and in the pres- ence of each other. IV. That at that time she was of sound mind and memory. Y. That the body of the instrument is in the handwriting of proponent, who prepared it at the request of the decedent, and after her instructions, and read it to her before exe- cution. I find as a conclusion of law : That the propounded paper was duly executed according to the requirements of the revised statutes ; that at the time of its execution, the decedent had testamentary capacity ; that the objections herein should be dismissed, and the will admitted to probate, [or if the Jmdings of , fact are adverse to the validity of the execution of the will, that said- paper writing should he rejected, and probate refused for the reason that said paper writing was not executed in accord- ance with the provisions of the revised statutes']. A. B., referee. § 7. Confirming the report. — After the report has been filed with the testimony, it must be confirmed by the surrogate to have effect (Estate of McEvoy, 1 Month. Law Bull. 63). The surrogate is not bound immedi- ately to confirm or reject the report; he may order fur- ther testimony to be taken (Matter of Pollock, 3 Redf . 100); but he cannot finally reject a report to which no exceptions are filed (Matter of Leffingwell, 30 Hun, 528). In New York county the report is confirmed as of course, unless exceptions are filed within eight days after a written notice of the filing of the report, and a copy of the report are served upon the opposing party. In case exceptions are filed, they can be brought to 328 REFERENCES IN SURROGATES' COURTS. a hearing on eight days' notice, on any stated motion day (Surrogate's Eules, No. 8). It has been held that a simple confirmation of the referee's report is not a sufficient decision to answer the requirements of sec- tion 2545, Code Civ. Pro., but that the surrogate should make an independent decision, with findings of fact and law (Matter of Keef, 43 Hun, 98). The exceptions filed to the referee's report must specifically point out tlie errors complained of, where the latter do not appear from a mere denial of the cor- rectness of the finding (Ingram v. Mackey, 5 Eedf . 357). The referee's report is reviewable as reports in ref- erences in the supreme court are. The surrogate in exercising the power conferred by section 2481, Code Civ. Pro., enabling him to send back the reports of referees for further action, must be guided by the same rules which govern in the supreme court (Matter of Kranz, 41 Hun, 463; People ex rel. Stevens v. Lott, 42 Hun, 408). In analogy to the procedure prevailing in the supreme court, Avhere the reference is to hear and determine, and it becomes necessary to make a case on appeal, the referee and not the surrogate is the proper person to settle the same (Matter of Niles, 14 N. T. State Eep. 538). § 8. Referee's and witnesses' fees. — These are the same as in references in the supreme court (Code Civ. Pro. §§ 2546, 2566); name! 3', for referees, six dollars per day, for each day necessarily spent in the business of the reference (see page 158); and for witnesses, fifty cents for each day's attendance, and mileage (see page 56). A practice prevails in the surrogate's court of New York county of sending the following notices to referees on informing them of their appointment. " All referees, special guardians, and other officers appointed by me are hereby notified that I shall expect, and rigidly exact, a prompt dispatch of the business entrusted to them. No allow- ance of costs or fees will be made to any of such officers, except with respect to days upon which substantial service has been rendered. A. B., surrogate." VOLUNTARY DISSOLUTION OF COKPOBAHON. 32i) CHAPTER XIJ Eeb^eences in Proceedings for the Voluntary Dis- solution OP A Corporation. § 1. Motion Papers. Form of Petition and Schedules. § 2. Presenting the Petition. Form of Order to Show Cause. § 3. Publishing the Order to Show Cause. § 4. Service of Same. § 5. The Hearing and the Referee's Report Form of Referee's Report. § 6. Application for Final Order — Notice. S 7. When Final Order will be Made and EflEeot thereof. Form of Order Dissolving Corporation and Ap- pointing Receiver. § 8. Sale or Transfer Pending Application. § 9. Exception of Certain Corporations. . § 1. Motion papers. — The method of obtaining a volun- tary dissolution of a corporation is regulated by sections 2419 to 2431, Code Civ. Pro. These sections provide, that a majority of the directors, trustees, or other officers, having the management of the corporation, may petition the supreme court, or a superior city court of the city where the principal office of the cor- poration is located, for a final order dissolving the corporation (§ 2419). Provision is also made fo;- the case where the trustees or directors are equally divided (§ 2420). The petition must show that the application if for one of the causes specified in the Code, and it must state the reasons why the dissolution is desired (§ 2421). A schedule must be annexed to the petition •containing, as far as the petitioners know, or have the means of knowing, (1) a full account of the credi- tors and of all unsatisfied engagements entered into 330 VOLUNTARY DISSOLUTION OF CORPORATION. and subsisting against the corporation; (2) the nam& and residence of each creditor and of the persons with whom such engagements were made, and to whom they are to be performed, if known, or if they are not known, a statement of that fact ; (3) the amount due each creditor, or other person above specified, and the nature of the debt or other engagement ; (4) the cause and consideration of each indebtedness ; (5) an inven- toryof the property of the corporation,and of the books, vouchers, and securities relating thereto ; (6) a state- ment of each encumbrance upon the property of the corporation of whatever nature ; (T) a true account of the capital stock of the corporation, with the name and residence of each stockholder, if known, and if not, a statement of that fact, together with his number of shares, the amount paid in thereupon, and the amount still due therefor. An af&davit made by each of the petitioners, to the effect that the matters of fact, stated in the petition and the schedules are just and true, so far as the afBant knows or has the means of knowing the same, must be annexed to the petition and schedule (§ 2422). Form of petition aud scliednles. In the matter of the application of a majority of the trustees of the New York Naval Stores and Tobacco Excliange for its dis- solution. To the court of The petition of A. B., C. D., E. F., etc., a majority of the trustees of the New York Naval Stores and Tobacco Exchange, respectfully shows : 1. That the said New York Naval Stores and Tobacco Exchange is a corporation, created and existing under and by virtue of the laws of the State of New York, to wit r the act of the Legislature of the State of New York, passed VOLUNTARY DISSOLUTION OF CORPOEATION. 331 on tlie 3d day of May, 1877, entitled an " Act to provide for the incorporation of Exchanges and Boards of Trade," and' that the place of business of said New York Naval Stores- and Tobacco Exchange is in the city of New York. II. That your petitioners are a majority, namely nine, of the trustees of said corporation, the total number of trustees being twelve. III. That the business of said corporation h\_setting forth hriefly the business and objects']. IV. That it is beneficial to the interests of the stockhold- ers that said corporation be dissolved for the reason that Baid corporation is no longer able to accomplish tlie purposes for which it was organized, and that the business which was originally to be carried on is no longer transacted there. That the dealings in futures and options in said corporation' is no longer carried on, and that there has been no busi'-- ness transacted on said exchange of any kind for over four months. That the rooms of said exchange are prac- tically vacant and not used for the purposes for which they were rented [setting forth additional reasons, if any, i/n detail]. For these reasons, your petitioners deem it beneficial to the interest of the members of said exchange, that said' exchange be dissolved. Y. Hereto annexed is a schedule, marked Schedule " A,'^ which contains the following matters, so far as your peti- tioners have the means of knowing the same. 1. A full and true account of all the creditors of the cor- poration and of all unsatisfied engagements entered intO' and subsisting against the corporation. 2. A statement of the name and place of residence of each creditor and of every person with whom sncli an engagement was made and to whom it is to be performed if known, or if either is not known, a statement of lliiit fact. 3. A statement of the sum owing to each creditor or other person specified in the last subdivision, and the nature- of each debt, demand or other engagement. ■4. A statement of the true cause and consideration of the- indebtedness to each creditor. ■332 VOLUNTARY DISSOLTTTION OF COEPORATION. 5. A full, just and true itiventoiy of all the property of the corporation, and of all the books, vouchers and securities relating thereto. 6. A.statement of each incumbrance upon the property of the corporation by judgment, mortgage, pledge or other- wise. 7. A full, just and true account of the capital stock of the corporation, specifying the name of each stockholder ; his residence, if itjis known, or if it is not known, stating that fact, the number of shares belonging to him, the amount paid in upon his shares and the amount still due thereupon. Wherefore, your petitioners pray this honorable court for a final order, dissolving said corporation, the New York Naval Stores and Tobacco Exchange, and for such other and further relief as to this court may seem proper. A. B. CD. E. F. Schedule " A." 1, 2, 3, 4. There are no creditors of the New York Naval Stores and Tobacco Exchange, and there are no unsatisfied engagements entered into by and subsisting against it. . . . 7. The capital stock of the New York Naval Stores and Tobacco Exchange is dollars, represented by shares of stock certificates of membership, of the value of dollars each. The following are the nanaes of each holder of a share of stock certificate of membership, together with his residence, if it is known, or if it is not known, that fact is stated, and Lis business address is given, together with the number of shares of stock certificates of membership belonging to him, so far as it is possible to state the same, as some of the shares of stock, it is believed, have been sold, but of which no transfer was made upon the books of the exchange, and the amount of the capital stock paid for in full, and the amount due thereupon by said stockholder. VOLUNTARY DISSOLUTION OF COKPOEATION. 333 NAME. BUSINESS ADDRESS. RESIDENCE. Number of Bhares of etock bel6ng- ing to each mem- ber and amount paid in. Amount still- dno there- upon. John Smith 21 Pearl Street, New York City. 50 11th. Ave., New York City. 25 shares, paid in $240. State of ISTew York, City and County of New York, ss. : A. B., C. D., and E. F., being severally duly sworn, depose and say, and each for himself deposes and says, that he has read the foregoing petition by him subscribed, and the foregoing schedule thereto annexed, and knows the contents thereof, and that the matters of fact stated in said petition,, and said schedule, are just and true so far as affiant knows- or has means of knowing. Sworn to before me / o'd' this day of , [ jj* p' § 2. Presenting the petition. — § 2423, Code Oiv. Pro. Where the petition is addressed to the supreme court, the papers must be presented at a term of that court, held within the judicial district, embracing the county wherein the- principal oflBce of the corporation is located. In a case specified in section two thousand four hundred and twenty of this act, the court- may, in its discretion, entertain or dismiss the application. Where it entertains the application, or where the case is one of those specified in section two thousand four hundred and nineteen of this act, the court must make an order, requiring all persons interested in the cor- poration to show cause before it, or before a referee designated in the order, at a time and place therein specified, not less than three months after the granting of the order, why the corporation should not be dissolved. The order must be entered, and the papers must be filed, within ten days after the order is made, with the clerk of the court, or, in the supreme court, with the clerk of the county where the prin- cipal office of the corporation is located. S34: VOLUNTARY DISSOLUTION OF CORPORATION. Form of order to show cause. At a special term, etc. Present, Hon. Justice. Title of the proceeding. Upon reading and filing the petition of A. B., C. D. and E. F., as trustees of the New York Naval Stores and "Tobacco Excliange, a corporation organized and existing •under and by virtue of the laws of the State of New York, having its principal place of business in the city of , in the county of , and the schedule thereto annexed, ^uly verified by all of said petitioners the day of , and upon motion of G. H., counsel for said petitioners, ordered, that all persons interested in said corpoi-ation, the New York Naval Stores and Tobacco Exchange, show -cause before I. J., as referee, at his office, No. street, in the city of , on the day of , at o'clock, in tlie forenoon of that day, why the said coi-poration. The New York Naval Stores and Tobacco Exchange, should not be dissolved, and it is further ordered, that a -copy of this order be published at least once in each of the three weeks immediately preceding the time fixed therein for showing cause, viz., the day of , in the Daily , and in the Morning , two newspapers pub- lished in the city of* , in the county of , wherein ithis order is entered. § 3, Publishing the order to show cause. — § 2424, Code Civ. Pro. A copy of the order must be pub- lished, as prescribed therein, at least once in each of the three weeks immediately preceding the time fixed therein for showing cause, in Ihe newspaper printed at Albany, in which legal notices are required to be published; and also in one or more newspapers, specified in the order, published in the city or county wherein the order is entered. * See L. 1884, p. 136, c. 133, §§ 2, 3, 4, V and 8, a general actrequir- ing the publication of such notices to be in newspapers published in tthe county instead of in the state newspaper. • VOLUNTARY MSSOLUTION OF CORPORATION. 335 § 4. Service of same. — § 2425. A copy of the order must also be served upon each of the persons, specified in the schedule as a creditor or stocliholder of the corporation, or as a person to whom an engagement of the corpo- ration is to be performed, other than a person whose residence is stated io be unlcnown, or to be without the United States. The service must be made, either personally, at least twenty days before the time appointed for the hearing; or by depositing a copy of the order, at least forty days before the time so appointed, in the post-ofiBce, inclosed in a postpaid wrapper, addressed to the person to be served, at his resi- dence, as stated in the schedule. § 5. The hearing, and the referee's report. — § 2426. At the time and place specifled in the order, or at the time and pla,ce to which the hearing is adjourned, the court, or the referee, must hear the allegations and proofs of the parties and determine the facts. If a referee was not designated in the order to show cause, the court may, in its discretion, appoint a referee when or after the order is returnable. The decision of the court, or the report of the referee, must be in writing, and must be made and filed with all convenient speed. It must contain a statement of the effects, credits, and other property, and of the debts and other engagements, of the corporation, and of all other matters, pertaining to its affairs. § 2427. The court or the referee is entitled to use, upon the hearing, the original petition, and the schedules annexed thereto ; and the clerk must transmit them accordingly, upon the written order of the judge, or of the referee. In that case, they must be returned with the decision or report. Form of referee's report. Title of the proceeding. To the court of I, G. H., the undersigned referee, duly appointed by an order entered on the day of , before whom all persons interested in the above named corporation sliow cause at my office, No. street, in the city of , on the day of J at o'clock in the forenoon of that day, why the said corporation should not be dissolved, do respectfully report : That on said day, I was attended by various of the peti- tioners and stockholders as will more particularly iippcar in the minutes of testimony hereunto annexed, and also by G. H., counsel for said petitioners. That after taking the 33G VOLUNTARY DISSOLTJTIOK OF CORPORATION. oath I proceeded to hear and take the evidence offered before me, on such hearing, and that the same was there- upon duly reduced to writing and is annexed to and made a part of this report. I do find and report as matters of fact: I. \_The incorporation and existence of the petitioners and the statute under which they were organised.'] II. [7%e objects and purposes of the corporation.'] III. [The amount of capital stock and the paid vp pro- portion thereof^ IV. \The number of members and trustees^ ^V. \The amount of annual dues of the stockholders.] VI. \The facts showing that the corporation has ceased to do business and that there is no prospect of its doing any future "business, the proportion of members who have paid dues, that the doing of future business would be unprofit- able, etc., etc.] VII. [^The liabilities of the corporation.] VIII. [The assets and all matters pertaining to the affairs of the corporation.] IX. That a copy of tlie order of this court, by which this reference was made, was heretofore duly served upon each of the individuals named in the schedules as stockhold- ers in the said corporation. X. That the said order was duly published once in each of the three weeks immediately preceding the time fixed therein for showing cause, in the " Daily ," and the " Morning ," newspapers published in the city and county of XL That no opposition was made to the dissolution of such corporation on the hearings before me. As a conclusion of law : I am of the opinion, and do respectfully report to this court, that the said corporation should be dissolved. All of which is respectfully submitted. Date. G. H., referee. VOLUNTARY DISSOLUTION OF CORPORATION. § 6. Application for final order — notice. — § 2428. Code Civ. Pro. Where the hearing is before a referee, a motion for a final order must be made to the court, upon notice to each person who has made himself a party to the proceedings, by filing with the clerk, before the close of the hearing, a notice of his appear- ance, in person or by attorney, specifying a post-oiBce within the State, wliore such a notice may be served. The notice may be served as pre- scribed in this act, for the service of a paper upon an attorney in an action. Where the hearing was before the court, a motion for a final order may be made immediately, or at such a time and upon such a notice, as the court prescribes. § Y. When final order will be made and effect thereof. — § 2429. Code Civ. Pro. Upon an application for a final order, if it appears to the court, in a case specified in section two thousand four hundred and nineteen of this act, that the corporation is insolvent, or, in a case specified either in that section, or in section two thousand four hundred and twenty of this act, that, for any reason, a dissolution of the corporation will be beneficial to the interests of the stockholders, and not injurious to the public interests, the court must make a final order, dissolving the corporation, and appointing one or more receiv- ers of its property. Upon the entry of the order, the corporation is dissolved. The court may, in its discretion, appoint a director, trustee, or other ofiioer, or a stockholder of the corporation, a receiver of its property. Form of oi'der dissolving corporation and appointing receiver. At a special term, etc. Present, Hon. Justice. Title of the proceeding. Upon the petition heretofore filed herein duly verified by A. B., 0. D. and E. F., the petitioners in the above entitled proceedings as trustees of the above named New York Naval Stores and Tobacco Exchange, and upon the report of G. H., referee, dated the day of , with the testimony thereto annexed, heretofore filed the day of , herein, together with due proof that the order herein requiring all persons interested in said corporation to show cause before said referee why said corporation should 23 338 VOLUNTARY DISSOLUTIOX OF CORPORATION. not he-dissolved, Las been duly served and publifehed in tlio manner required by law, duly filed with said report and upon the annexed certificate of the cierk of this court, and the annexed aflidavit of K. L., one of the attorneys of the petitioners herein, whereby it appears that no person has made himself a party to said proceedings in the manner provided by law, now after hearing said K. L., and no one opposing, ordered that said corporation, the New York Xaval Stores and Tobacco Exchange, be and the same is hereby dissolved and shall henceforth cease and determine, and it is further ordered that M. N., be, and he hereby is, ap- pointed receiver of all the stock, property, things in action and efEects of said corporation, with all the powers conferred by law upon receivers in like cases, and it is further ordered, that said receiver, before entering upon his duties, execute a bond in manner required by law, with two suflicient sureties, to the people of the State of New York,^ in the penal sum of dollars, which the court^deems a sufficient sum for the faithful discharge of his duties as such receiver, and that he tile such bond, when approved by a judge of this court, with the clerk of this court. [Annex the certificate and affidavit referred to.'\ § 8. Sale or transfer, pending application. — § 2430. Code Civ. Pro. A sale, assignment, mortgage, convey- ance, or other transfer, of any property of a corporation, made after the filing of a petition as prescribed in this title, in payment of, or as security for, an existing or prior debt, or for any other consideration ; or a judgment thereafter rendered against the corporation by confes- sion, or upon the acceptance of an offer, is absolutely void, as against the receiver appointed in the special proceeding, and as against the creditors of the corporation. § 9. Exception of certain corporations. — § 2431. Code Civ. Pro. This title does not apply to an incorpora- ted library society, to a religious corporation, or to a select school or academy incorporated by the regents of the university, or by the legis- lature, or to a municipal or other political cofporation. In the case of corporations affected by the provisions of this title and not having stockholders, it shall be sufficient for the purposes of this title tonotify,- name, and refer to the "members" of such corporations instead of "stockholders " as herein provided. PART IV. JREFERENOES UNDER STATUTES OTHER THAN THE CODE OF CIVIL PROCEDURE. CHAPTER I. References of Disputed Claims against Deceased's Estate. § 1. The Statute. § 2. Proceedings Prior to the Rfeference. § 3. What Claims may or may not be Referred. § 4. Consent to Reference — a Substitute for Pleadings. Form of Consent to Refer. § 5. The Order of Reference. Form of Order of Referenc& § 6. The Reference. § 7. The Report. Form of Referee's Report. Form of Order Confirming the Referee's Report. §8. Costs and Disbursements. § 1. The statute. — The reference is provided for in -part n., chapter VI., title III., article 2, §§ 36, 37 R. S. [See R. S., rth ed., pp. 2299, 2300]: The substance of these sections, so far as here material, is as follows : An executor or administrator who doubts the justice of a claim presented against the estate he represents, may agree in writing to refer the matter in controversy to one or three disinterested persons to be approved by the surrogate. Upon the ^ing of such agreement and approval with the clprk [3391 3i0 CLAIMS AGAINST DECEASED'S ESTATE. of the supreme court in the county in which one of the- parties resides, a rule shall be entered by the clerk referring the matter to the person or persons sa selected. Such referee shall, thereupon, proceed to- hear and determine the matter and make report to the court wherein the rule is entered. The powers, com- pensation, and control of such referee or leferees are the same as if the reference had been made in an action ; the court may set aside the report made, appoint other referees in place of those whose report is set aside, confirm the report, and adjudge costs, as- in actions against executors ; and the judgment, there- upon, shall be of the same effect as if rendered in a suit commenced by ordinary process. By provisions of section 1822, of the Code of Civil Procedure, where a claim is disputed or rejected, and not referred vmder the above statute, it outlaws at the end of six months, unless an action is commenced thereon against the executor or administrator within that time. § 2. Proceedings prior to the reference. — The executor or administrator has power when a claim is presented to require that it be made more precise and particular, before accepting or rejecting it (Weller v. Weller, tt Hun, 195 ; Townsend v. Ins. Co., 4 Civ. Pro. 39S). In presenting the claim, a personal interview between the creditor and the executor is not necessary. Com- munication by letter is sufficient (Gansevoort v. Nel- son, 6 Hill, 389). Claims may be presented and referred, although no notice to creditors has been ])ub- lished (Field v. Meld, T7 N. Y. 294). If, upon the presentation of a claim, an executor does not specific- ally admit or reject it, he must be regarded as disput- ing it (Cooper v. Felter, 6 Lans. 485). But, in Hoyt V. Bonnett, 50 N. Y. 538, it was held that the rejection must be "decided, unequivocal and absolute," to entitle the executor or administrator to the benefit of the short statute of limitations, and in Underbill v. CLAI5IS AGAINST DECEASED'S ESTATE. 3-J:l JSTewburger, i Eedf. 499, it was held by Surrogate ■Calvin, that in the absence of any act on the part of the administrator indicating his rejection or dispute of the claim, it wiU be presumed to have been admitted. Where a claim against an estate was presented to the executors and disputed by them, and, thereupon, they offered to refer the same to three persons named, and the claimant refused to consent thereto, but offered to refer to any persons to be named by the surrogate, and the executors would not agree to this, it was held that the executors had refused to refer within the meaning of the statute, and rendered themselves liable to pay the costs of an action subsequently brought against them therefor (Gorham v. Eipley, 16 How. Pr. 313). The offer to i-efer may be oral (Lanning v. Swarts, 9 How. Pr. 434). Upon the reference of a claim against a,n estate by stipulation under the statute, it has been lield that no proof is necessary that the testator left ■a, will, or that defendant was executor and that he was estopped from denying those facts by making the stipulation to refer (Banfield v. Eumsey, 4 T. & C. -322). § 3. What claims may or may not be referred. — Only •claims that have accrued against deceased in his life- time are referable (G-odding v. Porter, 17 Abb. Pr. 374). A claim presented by an executor in his own ~behalf. may not be referred (Shakespeare v. Markham, 10 Hun, 311 ; Stewart v. O'Donnell, 2 Dem. 17). But the objection that such a claim is not referable must be taken before entry of judgment upon the referee's report, where such a claim has been referred under the statute (Weller v. Weller, 4 Hun, 195). Both legal and equitable claims are referable (White v. Story, 43 Barb. 124), though a claim for a specific performance of a contract has been held not to be referable (Myers v. Cronk, 45 Hun, 401). Claims for conversion of property are referable (Brockett v. Bush, 18 Abb. Pr. 337). In Alvely v. Akely, 17 How. Pr. 21, 343 CLAIMS AGAINST DECEASED'S ESTATE. however, . it was said that claims for torts were not referable. Unliquidated claims of a surviving partner against the estate of deceased partner are referable- (Francisco v. Fitch, 25 Barb. 130). § 4. Consent to reference — a substitute for pleadings. — Upon such a reference the agreement to refer, there- being no written pleadings, should present substan- tially the issue (Woodin v. Bagley, 13 Wend. 453). Any defense that would have been available to deceased if alive, however, may be made by the per- sonal representatives (Tracy v. Suydam, 30 Barb. 110), and it is unnecessary to formally plead even the stat- ute of Umitations (Converse v. Miner, 21 Hun, 36Y). Form of consent to refer. Whereas A. B. has lately presented a claim to C. D., a& executor of the last will and testament of E. F., deceased^ for dollars, for money loaned said deceased by said A. B., a copy of -which claim is hereto annexed, and -whereas- the justice of said claim is doubted by said execntor, now therefore, it is hereby agreed that the matters in contro- versy be referred to G. H., Esq., counselor at la-w, of No^ street, in the city of , as sole referee to hear and determine the same. Date. A. B. C. D., as executor, etc. G. II., the person named in the foregoing consent, is hereby approved of as referee to hear and determine the matters therein mentioned. I. J., Surrogate of the county of § 5. The order of reference. — Where a surrogate signed, an order entitled in his court reciting the presentation and rejection of a claim against deceased's estate, and that the parties had agreed upon a reference, and CLAIMS AGAINST DECEASED'S ESTATE. 343 directing that persons named be appointed referees to hear and determine said claim, and that such order be entered with the clerk of the county, and a consent to its entry signed by the parties being written at the foot, of the order, it was held, the order having been filed with the proper clerk, that said order and consent and filing were a substantial comphance with the statute refei'red to, and gave the referee jurisdiction in the maitter, and that the entry of the order could be supplied nunc pro tunc (Bucklin v. Chapin, 53 Barb. 488). But where the agreement to refer was not filed, and uo order of reference was entered, it was held that the supreme court did not become possessed of the case, and so could not allow costs to claimant (Com- stock V. Olmstead, 6 How. Pr. T7 ; Burnett v. Gould, 27 Hun, 366). Form of order of reference. Supreme Court. A. B. V. C. D., as executor, etc. On reading and filing the annexed consent to refer the claim of A. B., above named, against the estate of E. F., deceased, to G. H., Esq., counselor at law, of No. street, in the city of , as sole referee, to hear and determine the same, and the approval of the said person as referee, by I. J., surrogate of the city and county of New York, in writing thereto annexed, and on motion of K. L., Esq., attorney for said A. B., claimant, it is ordered, that the said G. H. be, and he hereby is, appointed sole referee to iiear and determine the matter in controversy mentioned in said agreement. ' Date. M. N., clerk. 3-tl CLAIMS AGAINST DECEASED'S ESTATE. § 6. The reference. — A refereiace under the statute is a special proceeding (Hatch v. Stewart, 42 Hun, 164; Paddock v. Kirkham, 102 N. Y. 597; Young v. Cuddy, 23 Hun, 249). On such a reference a commission may be issued to take the testimony of absent witnesses (Paddock v. Kirkham, 38 Hun, 370 ; aff'd 102 N. Y. 597). The heirs at law, next of kin, and legatees may insist upon the statute of hmitations as a defense, although said statute has not been specifically set up in former proceedings before the surrogate (Grilbert v. Comstock, 13 Week. Dig. 16G; see also, Butler v. Johnson, 41 Hun, 206). Where a claim against an estate had been referred according to statute and adjudged to be a valid one, it was held that the administrator was not ' required to give notice of the proceedings upon the ref- erence to his cestuis que trusts (Mayer v. Gilligan, 2 ^. Y. State Eep. 702). § 7. The report.— Judgment upon the report of a referee upon such a reference is conclusive, unless the report be set aside, and can only be reviewed on appeal (Matter of Gray, 42 Hun, 411). The statute requiring the referee to file his report within sixty days after submission of the case to him, does not apply to a ref- erence under above statute (Godding v. Porter, 17 Abb. Pr. 374). In Countryman v. Norton, 21 Hun, 17, one A. was appointed referee under above statute. Pend- ing the reference he was appointed a justice of the supi-eme court, and while such officer he filed his report. On motion to set the same aside, as having been made by a justice of the supreme com-t, acting as referee in violation of the constitution, held, that the motion should be granted, and that all proceedings upon the reference, pending the period of the referee's incom- petency, be sat aside with leave to the parties to pro- ceed with the reference as the proceedings stood on the day of the referee's appointment as justice of said court. In Masten v. Budington, 18 tlun, 105, it was liold that where a matter in controversy has been once CLAIMS AGAINST DECJEASED'S ESTATE. 345 referred, under the above statute, the court at special term has power on setting aside the report of the referee, to discharge the latter and appoint another in his place, and that the consent to a reference under the statute, is a waiver of the right to trial by jury. In Young v. Cuddy, 23 Huu, 249, it appeared that the plaintiff's claim was referred under the stat- ute. The referee reported in favor of claimant. Upon motion to set the same .aside, the report was formally confirmed and judgment entered. The representa- tives of deceased's estate, thereupon procured -the set- tlement of a case containing exceptions, and moved at special term for, and obtained, ah order setting aside said report. It was held on the appeal that the res- pondent's practice was correct. Upon the coming in of the report upon the reference under the statute, the court has no power to order judgment against said report. Either the report must be confirmed, and judg- ment ordered thereon; or it must be set aside, and there- upon a new trial follows before the same referee or others appointed in his place (Eadlej^ v. Fisher, 24 How. Pr. 404 ; SomerviUe v. Crook, 9 Hun, 664). Where a claim had been referred to a referee pursuant to stat- ute, but not properly referable thereunder, and a motion was luade to confirm the report in favor of the claimant, it was held that the motion might properly be opposed upon the report itself, without making a case (Godding v. Porter, 17 Abb. Pr. 3Y4) Form of referee's report Supreme court. A. B., V. O. D., as executor, etc. To the supreme court. Pursuant to an order dated the day of , by which it was referred to me, to hear and determine the matters in controversy, arising on the claim of A. B. against the estate 346 CLAIMS AGAINST DECEASED'S ESTATE. of E. F., I, G. H., tlie referee therein named, do respect- fully report: That I have been attended by the counsel of the respect- ive parties and have lieard and considered their proofs and allegations, and I do find thereon as Matters of Fact : I. That E. F. died on the day of , leaving a last will and testament, which was duly proved in the office of the surrogate of county. That C. D. was named as the sole executor therein of said will, and to him letters testa- mentary thereunder were duly issued out of the surrogate's court of the county of , and he qualified as executor and is acting as such thereunder. II. That after the death of said E. F., said A. B., above named, presented a claim against the estate of said deceased in words and figures as follows: [stating the claim in detail^ III. That said claim was disputed by said executor and pursuant to the statute it was on consent of said claimant and said executor, and on the approval of the surrogate of tlie county of , referred to me to hear and determine the same. IV. That [stating the facts relative to the claim, found Jjy the referee.'] As conclusions of law I find: That said claimant has a valid claim against the estate of said E. F., deceased, for the sum of dollars, and is entitled to recover said sum of dollars of said executor, besides- costs. All of which is respectfully submitted. Date. G. H., referee. CLAIMS AGAINST DECEASED'S ESTATE. 34T Form of order confirming the referee's report. At a special term, etc. Present, Hon. Justice. Title of tJie case. {After reciting the jurisdictional facts, as in foregoing^ ordered, that said report, and all things therein contained do stand ratified and confirmed, and on filing the same with the clerk of the county of , it is furtlier ordered, that said clerk enter and docket a judgment in this cause therein in favor of said A. B., against said C. D., as executor, afore- said, for the said amount of said claim, together with the disbursements upon the said reference herein \and costs when allowed]. * § 8. Costs and disbursements. — Where the report is in favor of the claimant upon a reference under the statute, after the rejection of the claim and the claimant con- siders himself entitled to costs, the proper practice is to apply to the court for an order therefor (Smith v. Eandall, 67 Barb. 377). In Hatch v. Stewart, 42 Hun, 164, which was an appeal from a judgment confirming the report of a referee in favor of the claimant upon a reference under the above statute, the court said, at page 165, with reference to the disbursements upon such a reference : " The plaintiff was entitled to them as a matter of right, because the provisions of section 317 of the old Code to that effect were not repealed by chapter 417 of the Laws of 1877. And although the entire provisions of the old Code are embraced in the repealing clause of Laws of 1880 (chapter 345, § 1, sub-div. 4, and § 2), the existing right of the prevailing party to recover the fees of referees and witnesses, and other necessary disbursements in a proceeding of this character is pre- served by section 3, sub-division 8, of the same act." 348 CLAIMS AGAINST DECEASED'S ESTATE. To the same effect is Krill v. Brownell, 40 Hun, 72. Where a claim for $1,000 for breach of covenant was presented against deceased's estate, and it was referred, and the referee reported six cents damages in favor of claimant, the court, at Special Term, rendered judgment in favor of claimant for the six cents damages, and for costs and an exti'a allowance to the defendant. On appeal the judgment was held correct (Hopkins v. Lett, 42 Hun, 442). Where, upon a reference under the statute the claim was much reduced, it was held that he was not entitled to costs — the court applying the rule that costs should not be adjudged to a creditor of deceased's estate unless payment of the claim has been unreasonably resisted or neglected (Robert v. Ditmas, T Wend. 522 ; Comstock v. Olmstead, 6 How. Pr. 77). In Carhart v. Blaisdell's Executors, IS Wend. 531, the plaintiff had claimed of the defendants between $400 and $500, and the defendants made no offer to pay anything. The matter was thereupon referred pursuant to statute (2 E. S. 88, § .36), and the referees reported in favor of plaintiff for $130, which the defendants paid. On denying the application for costs, the court said : "It is impossible to say that the payment of plaintiff's claim was unreasonably resisted or neglected." It was further held in the above case that the referee's certificate that the claim had been unreasonably resisted was not evi- dence on apphcation to the couit for costs. Where the administrators disputed the claim, and the same was referred, and the referee reported in their favor, it was held that they were entitled to costs as in an action (Munson v. Howell, 12 Abb. 77 ; in effect over- ruling VauSicklert;. Graham, 7 How. 208 ; and Avery V. Smith, 9 How. 349. See also Radley v. Fisher, 24 How, 404, to the same effect). REFERENCES UNDER GENERAL ASSIGNMENT ACT. 34^ CHAPTER II. References Under the General Assignment Act of i8Tr. § 1. References on Accountings by Assignees. § 2. Procedure. Form of Order of Reference to Take Assignee's Account. Form of Referee's Report on Accounting. § 3. References to Examine Witnesses and Boolcs. Form of Order of Reference to Examine Wit- nesses and Books. § 4. References on Application by Assignee to Compromise Claims. § 5. References of Disputed Claims. § 1. References on accountings by assignees. — General as- signments for the benefit of creditors are regulated by chapter 466, Laws of 1877, and the acts amending the same [see 3 R. S., 7th ed., pp. 2276 to 2282]. The refer- ence tij^ated of in this section is provided for by section 20, sub-d. 3, of said act. Under this section the county court* has power to take and state such account or to appoint a referee to take and state it, and such referee has power to examine the parties and witnesses on oatli in relation to the assignment and accounting, and all other matters connected therewith, and to compel their attendance for that purpose and their answers to questions, and the pioduction of books and papers. * Concurrent power of the supreme court. — By chapter 380, Laws of 1885, power is conferred upon the supreme court, and the justices thereof, concurrently with county courts and county judges, to act in all mat- ters relative to the General Assignment Act. All applications under said act, made in the supreme court, are to be made to the court, or a justice thereof, within the judicial district where the assigijment is S50 REFERENCES UNDER GENERAL ASSIGNMENT ACT. § 2. Procedure. — The refei^ee must be sworn unless the oath is waived. Section 1016, Code Civ. Pro., applies to such a proceeding (Matter of Vilmar, 10 Daly, 15). [For form of referee's oath, see page 6i.J Creditors have the right to be heard on an application for a refer- ence upon the referee's account (Matter of Schaller, 62 How. Pr. 40). Upon the motion to confirm the report the court will not pass upon matters to which no ex- ceptions have been filed, and which one counsel chooses to argue without notice to his adversary (Matter of Eauth, 10 Daly, 52). Upon the accounting the referee cannot adjudicate iipon the claims of third parties against the assignee for conversion. Such parties should apply for a refer- ence under section 26 of the Act (see post ; Matter of Marklin, 13 Daly, 105). Eule 30, Gen. Eules Prac, applies to a reference on an accounting .by an assignee, and at the expiration of eight days, if no exceptions are filed, the report will become absolute and stand ' confirmed. If the parties in interest aU consent, the report may be confirmed instanter, but the consent must be in writing and proved to the sa.tisfaction of the court (Matter of Putnam, 2 Month. Law BuU. 17). In the court of common pleas for the city and county of New York certain rules with regard to assignments have been established, which are» impor- tant in this connection. Eule 23. The assignee must file an account in all cases which shall be referred for examination. On application for leave to compromise a claim due the estate, notice to the creditors may be ordered, and the case sent to a referee. Eule 27. The affirmative on the accounting shall be recorded, and all proceedings and hearings under the act had in the supreme court, are to take place at a special term of court, held in the county where the judgment debtor resided at the time of the assign- ment, or in case of assignment by co partner, in the county where the principal place of business of such co-partners was at the time of such assignment. REFERENCES UNDER GENERAL ASSIGNMENT ACT. 351 with the assignee, and the objections to the account may be presented to the referee in writing, or be brought out on a cross-examination. And in the latter case they must be specifically taken and entered on the minutes. Rule 28. The testimony shall be signed by the sev- eral witnesses, and be attached to and filed with the report of the referee. Rule 29. The report of the referee shall show all the jurisdictional facts necessary to confer power on the court, such as the proper executing and acknowledg- ing of the assignment, the recording of the same, the fihng of the schedules and bond, the advertising for creditors, the issuing of the citation, the presenting of the account ; and where any items may be disallowed in the account -of the assignee, the same shall be fuUy set out in the report. Form of order of reference to take assignee's account At a special term, etc Present, Hon. Justice. In the matter of the Final Accounting of A. B., Assignee of 0. D. The above named assignee for the benefit of creditors of said C. D., under a general assignment, made on the day of , and recorded in tlie office of the clerk of the city and county of New York, on the same day, having filed his account as such assignee herein, on the day of , and a citation having been issued out of and under the seal of this court to all persons interested in said assigned estate, to attend the final settlement of said account. Now, therefore, on the said account, filed as aforesaid, the papers and schGdules thereto annexed, said citation and the proof of the due service thereof, and on motion of said assignee, it is ordered, that it be referred to K. G., Esq., 352 KEFEREXCES UNDER GENERAL ASSIGNMENT ACT. counselor at law, to take and state tlie accounts of the said assignee, of Jiis proceedings as sncli assignee of said assigned estate, with antlio-ity to said referee to examine the parties and witnesses on oath in relation to said assignment and accounting, and all matters connected therewith; and it is further ordered, that said referee take proof and report as to what persons are entitled to share in the distribution of said assigned estate, and in what priority and proportion : and it is further oi-dcred, that any party to this proceeding, iiiid any creditor may object to any claim presented before said referee, and that said referee shall thereupon take the proofs and report as to the validity of such claim so objected to, and It is further ordered, that said reference proceed at , and that days' notice of the time and place of hearing bo given to all creditors who have presented claims or who appeared upon the return of said citation. Form of referee's report on accounting. Title of the ^proceeding . To the court of I, K. G., referee, appointed herein by order dated the day of , to take and state the accounts of the above named assignee, do respectfully report, that having taken and subscribed the oath required of a referee by section 1016 of the Code of Civil Procedure, I proceeded to take proofs, and from the evidence before me, which is hereto annexed, and forms part of this report, I find the follow- ing: I. That prior to the day of , the above named , engaged in business in the city of New York, under the firm name of , and that the said assignor then resided in the city and county of New York. II. That on said last mentioned date, he executed and ac- knowledged an instrument in writing assigning all his prop- erty to the above named assignee in trust for the benefit of the creditors of said assignor, that the following preferences were created in and by said assignment, viz.: REFERENCES UNDER GENERAL ASSIGNMENT ACT. 353 III. That the said assignee joined in the execution and acknowledgment of said assignment and accepted said trust. That said assignment was acknowledged by said assignor and assignee, on the day of , and .was recorded in the ofBce of the clerk of the city and county of New York on the day of IV. That schedules of the assigned estate and of the lia- bilities of the assignors duly verified by on , were filed in the olHce of the clerk of this court on the day of , showing the liabilities of the assignors to be $ , with $ nominal assets, and % actual assets ; and on the day of ,18 , Hon. , one of the judges of this court, ordered the assignee to file a bond in tlie penalty of $ Y. That on the day of ,18 , the said as- signee presented to the Hon. , one of the judges of this court, his bond with , residing at , , residing at , as sureties in the penal sum of , which bond was, on the said last named day, approved by the said last named judge, and was filed on said day in the office of the clerk of the court. VI. That the said assignee having applied to this court upon petition verified by him on the day of , 18 , for an order to advertise for creditors to present their claims, with the vouchers duly verified, an order was thereupon made on the day of , by , the Hon. , presiding, authorizing such advertisement to be made in the , a newspaper published in the city of E"ew York, and in the , a newspaper published in said city, once in each week for six successive weeks. VII. That said advertisement was published as directed in each of said papers, commencing on the day of , 18 , and the following is a copy of such advertisement. VIII. That a copy of such advertisement, enclosed in a sealed envelope on which was endorsed a direction that if the same. was not delivered in ten days it should be returned to , attorney-at-law, No. street, New York city, and with the proper postage prepaid thereon, was deposited in the post-office in the city of New York, 33 354 REFERENCES UNDER GENERAL ASSIGNMENT ACT. directed to eacii of the creditors whose names appear on the books of the said assignor. That the following, and no others, of said notices have been returned by the postmaster, viz. : those addressed to IX. That the following persons have presented claims, dulj verified, to the assignee, viz. : NAME. ADDBESS. AMOUNT. DUB. FOE. X. That on the day of , the said assignee pre- eented to this court an account of his proceedings as assignee, verified by his oath thereto, made on the day of , stating his account as follows, viz. : Dr. Inventory of stock . . , , $ Inventory of accounts .... Increase by . .... Or. Decrease . . .... $ Expenses . . .... Dividends paid to .... Balance , .... $ XI. That upon petition of the said assignee, verified by him on the day of , this court, by order made by Hon. , one of the judges thereof, directed a cita- tion to issue to all persons interested, requiring them to ap- pear in this court and attend the final settlement of the ac- counts of said assignee. That such citation was tliereupon issued out of and under the seal of this court, returnable on the day of , that by order of this court, duly made on the day of , the said citation was ordered to be served by publication in the , a newspaper pub- lished in the city of New York, and iu the , a news- paper published in said city. REFERENCES UNDER GENERAL ASSIGNMENT ACT. 355 XII. That 6aid citacion was duly served in the following manner upon , by delivering a copy of said citation to each of said creditors, and leaving the same with him, and said citation was further fierved upon all the creditors of said assignor by publication, .as directed in the order aforesaid, and upon all creditors •whose residences could be ascertained by diligent inquiry by mailing copies thereof as directed in said order, and that due .and legal service has been made of said citation, and the order of court 1-elative thereto has been in all respects com- plied with. XIII. That on the return of said citation the following parties and none other appeared in this court; XIV. That the following objections to said account were filed by the following parties: XV. That by order, made by the Hon. , on the day of , this court referred the said account to me to take and state the same and to examine the parties and witnesses under oath in relation to said assignment and all matters connected therewitli, and to take proof and re- port as to what persons are entitled to share in the distribu- tion of said assigned estate, and in what priority and pro- portion. XVI. That I issued a summons to attend the reference before me at my office, No. on the day of , at o'clock, which notice was duly served on all the creditors, who appeared as stated in paragraph XIII. of this report. XVII. That the following named persons appeared before me on said reference in person : And the following by counsel, viz. : XVIII. That the said assignee, immediately after the approval and filing of his bond, entered upon his duties as such assignee ; that he reduced to possession the assigned estate consisting of that he sold ..... $ realizing therefrom .... $ that he collected .... $ receiving from all sources a total of $ ; that he paid 356 REFEKENCES UNDER GENERAL ASSIGNMENT ACT. out and expended for necessary expenses in the adminiutra- tion of the estate, as appears by said account, the sum of $ ; That he has faithfully performed the duties of his said trust as assignee as aforesaid, and that he should be allowed the foregoing expenditures as necessary in. the execution of said trust, and that his accounts should be stated, and I do- hereby state them as follows, viz. : De. To Inventory of stock. " " Accounts. " Increase (Schedule A.) Total. • Cb. By Decrease of stock. Accounts. Expenses. Payments to Leaving a balance in the hands of the assignee, subject to his commission and the expenses of this accounting, of $ XIX. That the commissions of the assignee, as computed by me, amount to $ , which should be allowed to him, leaving in his h^nds the sum of $ , after deducting commissions subject to the costs of this accounting. referee. [The foregoing forms are taken from " Derby on Assign- ments," by permission of the publishers.] § 3. Reference to examine witnesses and books. — Section 21 of the General Assignment Act empowers the county judge,* on petition of any party interested, to order the examination of witnesses and the production of any booki and papers by any party or witness before him, or before a referee to be appointed. The evidence so taken, together with the books and papers, or extracts therefi^om, to be filed in the county clerk's office, and may be used in evidence by any creditor or * See foot-note, page 349. REFERENCES UNDER GENERAL ASSIGNMENT ACT. 357 assignee, in any action or proceeding then pending, or which may hereafter be instituted. On such a reference, no witness or party is ex- .cused from answering on the ground that his answer may criminate him, but such answer is not to be used against him in any criminal action or proceedings. It is well settled that the examination under section .21 is to be in aid of the assignment (Matter of Hol- brook, 99 N. Y. 539). It cannot, therefore, be ordered to assist in bringing out a state of facts upon which to found an action to set aside the assignment (Matter of 'Goldsmith, 10 Daly, 112), nor extend to an inquiry as to whether there was legal or actual fraud in the anterior transactions (Matter of Rindskopf, 16 Abb. N. C. 316). The examination must be limited to an investigation ■-concerning the assigned estate, an inquiry into other transactions is not allowed (Matter of Brown, 10 Daly, 115 ; Matter of Everit, lb. 99). While the examination is regarded as a proceeding in .aid of the assignment, and as a method of discovering the assignor's assets, and is not permissible for the pur- pose of setting aside an assignment, yet a party other- wise entitled to the examination is not debarred there- from by the mere fact tliat fraudulent transactions on the part of the assignor may be developed sufficient to set aside the assignment at th^ suit of a creditor (Matter of Wilkinson, 36 Hun, 134). The examination may be ordered at any time, and is not necessarily confined to cases where a proceeding is pending under the act (Matter of Bryce, 10 Daly, 18). It is of no importance, as affecting the propriety of granting the order for the examination, that the assignee is, and always has been willing to permit the inspection prayed for (Id.). A necessity for the examination should be shown .(Id.) ; and it should also appear that some benefit wiU result to the estate therefrom (Matter of Holbrook, 99 JSC. Y. 539) ; the petition therefor should be signed by 358 EEFERENCES UNDER GENERAL ASSIGNMENT ACT. the petitioner himself. When made by a corporation^ it should be signed and verified by an officer of the cor- poration authorized to take action in its behalf (Matter of Brown, 10 Daly, 115). The order should explicitly state the subject and extent of the examination (Matter of Swezey, 62 How. Pr. 215), and should name the witnesses to be examined (Matter of Holbrook, 99 N. Y. 539). The opinion of the referee on a reference of this character is out of place. His business is to take the examination. The evidence is to be filed in the county clerk's office for use in actions or other proceedings (Id.). In Matter of Ives (Daily Eegister, Sept. 14, 1887), Larremoee, C. J., took the view that the referee was powerless to ask questions of the parties examined. That his entire duty was exhausted in taking the tes- timony and filing it in the clerk's office. Form of order of reference to examine witnesses and books. At a special term, etc. Present, Hon. Justice. Title of the proceeding. On reading and filing the petition of A. B., verified the day of , praying for an examination of the witnesses- and the production of the books and papers therein speci- fied, pursuant to section 21, chapter 466, of the Laws of ' 1877, it is ordered that 0. D. and E. F., the said witnesses, attend before K. G., Esq., counselor-at-hiw, who is hereby appointed referee for that purpose, at his office, No. street, in the city of , at o'clock, in the forenoon, ott the day of , and then and there submit to an examin- ation on the part of said A. B., and tliat the said C. D. and E. F., then and tliere produce and have the following books- and papers : [specifying same.'] And it is further ordered, that the evidence so taken^ REFERENCES UNDER GENERAL ASSIGNMENT ACT. 359 together with the books and papers, or extracts therefrom, as the case may be, shall be filed in the county clerk's office.* and majr be used in evidence by any creditor or assignee in any action or proceeding then pending, or which may there- after be instituted. The referee may annex to the evidence taken the same form of report as upon a reference to take testi- mony to be used on a motion, varying the last sentence to conform to the order of reference (see page 207). § i. Eeferences on application by assignee to compromiBe claims. — Section 23 of the Assignment Act, confers power upon the county judge to permit the assignee, for good cause shown, to compromise or compound any claim or debt belonging to the estate. By rule 23, of the court of common pleas for the city and county of New York, with regard to insolvent assignments, the application may be sent to a referee. This course was adopted in Matter of Youngs, .'5 Abb. N. 0. 346. § 5. References of disputed claims. — Section 26 of the Assignment Act, empowers the court, in its discretion, to order a trial by jury, or by a referee, of any disputed claim or matter arising under the act. The reference ordered under this section is a reference to hear and determine the issues (Matter of Fairchild, 10 Daly, 74), and the principles relative to references to hear and determine are applicable ; but contra, Matter of Potter, 44 Hun, 197. * If the proceeding was commenced in the court of common pleas, the testimony, etc., should be filed with the clerk of that court. 360 APPEALS FEOM COMMISSIONERS OF HIGHWAYS. CHAPTEK III. Eeferences upon Appeals from Commissioners of Highways. § 1. The Statute. Form of Appeal. Form of Order Appointing Referees. Form of Referee's Order. § 2. Principles Controlling Referees upon References herein. § 1. The statute. — Eeferences under sections 8 and 9, of cli. 455, Laws of 184T, amending and revising title V, art. rv, of ch. 16, of the Eevised Statutes. The provisions gf sections 8 and 9, Laws ISiT, ch. 455, so far as here material, are as follows: Any person, conceiving himself aggrieved by the determination of .commissioners of highways in refer- ence to laying out or altering any road, may, within sixty days after the filing of such determination in the county clerk's office, appeal to the county judge, in the same manner as appeals theretofore were allowed to three judges, and said judge, or in case of his disa- bility, then one of the justices of the sessions, shall, after the expiration of said sixty days, appoint in writing three disinterested freeholders not named by interested parties, lesidents of the county, but not of the town wherein the road is located, as referees to hear and determine all the appeals that may have been brought within the said sixty days, and shall notify them of their appointment, and deliver to them all papers pertaining to said appeals. Upon i-eceiving notice of appointment the said referee shall possess all the powers and discharge all the duties heretofore pos- sessed and discharged by the three judges, and give the same notices heretofore required to be given by the APPEALS FROM COMMISSIONEKS OF HIGHWAYS. 361 provisions of title 1, art. 4, ch. 16, part 1, of E. S., .and before proceeding shall be sworn by some officer authorized to take affidavits to be read in courts of record, faithfully to hear and determine the matters referred. Form of appeal from the commissioners of highways. To the Hon. C D., county judge of county. I, A. B., of the town of in said county, considering myself aggrieved by the determination of the commission- ers of highways of the town of , in said county, made on the day of , 18 , in laying out a highway in said town, commencing in (giving survey), upon the application of , do hereby appeal from the determi- nation of the said commissioners, and pray the appointment of referees according to the form of the statute in such case made and provided, to hear and determine my said appeal. The grounds upon which this appeal is made are that a road is not necessary or proper, where the proposed road has been located ; that said road is not necpssary for the benefit of the traveling public ; that there is now sufB- cient public highway at or near the location of the proposed road to accommodate the traveling public, as the same has been used and enjoyed for many years last past ; that its benefits will not equal its expense and said appeal is brought ito reverse entirely the determination of said commissioners. Date. A. B. 362 APPEALS FKOM COMMISSIONERS OP HIGHWAYS. Foiin of order appointing: referees. State of New York, ) county. ) Whereas, A. B., of the town of , in said county, has appealed from the determination of the com- missioners of highways of the said town, made on the day of , 18 , in laying out a highway in said town, which highway is particularly described in the said appeal hereto annexed, and whereas sixty days have elapsed since such determination was filed in the office of the towa clerk of said town. Now, therefore, T, C. D., county judge of said county, to-, whom the appeal was addressed according to the form of the statute in such case made and provided, hereby appoint E, F., G. H. and I. J., all of the town of , three dis- interested freeholders who have not been named by the parties interested in the appeal,, and who are residents of the county, but not of the town wherein the road is located^ referees to hear and determine all the appeals that have been brought in relation to the said determination of the- said commissioners. Dated, , 18 . 0. D., County Judge, county, N. Y. Form of referee's order. Whereas, A. B., of the town of , in the county of , on the day of , appealed to the Hon. C. D., county judge of said county, from the deter- mination of the commissioners of highways of said town, made on the day of , 18 , in laying out a highway in said town, which highway is particularly de- scribed in the said appeal hereto annexed, and whereas,, after the expiration of sixty days after such determination APPEALS FROM COMMISSIONERS OP HIGHWAYS. 363: had been filed in the office of the town clerk of said town, the said county judge, according to the form of the statute- insuch cases made and provided, appointed E. F., G. 11. and I. J., all of the town of , three disinterested free- holders, who had not been named by the parties interested in the appeal, and who are residents of the county, but not of the town wherein the road is located, referees to hear and determine all the appeals that had been brought in relation to- the said determination of the said commissioners, which said appointment is hereto annexed, and we having given notice pursuant to law to the said commissioners of highways, and to M. N. and O. P., applicants. for such road, specifying- the day of , 18 , as the time, and the dwell- ing liouse of A. B., in the said town of , as the place^ at which we would convene to hear the appeal, which notice was duly served at least eight days before the said time of convening, to wit, on the day of , 18 ; and we having convened at the time and place specified, and be- fore proceeding to hear the said appeal having been duly sworn by an ofiicer authorized to take affidavits to be read in the courts of record, to wit, X. T., notary public of the said county, faithfully to hear and determine the matter i-ef erred to us, have heard the proofs and allegations of the parties, and do tliereupon order, determine and adjudge that the said determination of said commissioners of highways be, and the same is hereby affirmed. E. F., I f The testimony hereto attached was taken by us at the hearing of said case. All the referees were present at each hearing, and were all present and deliberated when the de- cision was made ; we also hereto attach a copy of the appeal and the order appointing us referees. E. F., ) f p rr f reterees. § 2. Principles controlling referees upon references herein. — The order appointing referees is to be filed in the office of the town clerk of the toA^^l in which the road is located (L. 1847, ch. 455, § 21). 3C-i APPEALS FROM COMMISSIONERS OF HIGHWAYS. The referees are incompetent to proceed witli the reference before taking the required oath (People v. Oonnoj', 46 Barb. 333). Eight days' notice in writing of meeting of referees must be given to commissioners, and three days' notice to occupants of land to be taken (People v. Osborn, 20 Wend. 186 ; Terpening v. Smith, 46 Barb. 208). After making their final order, reversing order of the com- missioners, the referees have no further power (Eogers V. Eunyan, 9 How. Pr. 248). No notice to the relator of the hearing before the referees is necessary (People V. Shilaud, 65 N. Y. 452). A majority "of the referees may hear and determine the appeal (Id.). The referees have no power to receive evidence for the purpose of impeaching the freeholder's certificate, or of falsifying the recitals in the order of reference (People v. Van Alstyne, 32 Barb. 131). The referees may reverse the decision of the commis- sioners in part, and affirm it as to the residue (People v. Baker, 19 Barb. 240). It is the -duty of the referees in reversing the order of the commissioners to make such order as in the referee's judgment the commissioners should have made (People v. Com. of Highwavs, 4 Seld. 476). The referees determine the appeal on the facts exist- ing at the time of hearing (People v. Goodwin, 1 Seld. .568.) Eeferees cannot hear appeals in the case of their own kinsman (People v. Flake, 14 How. Pr. 527). If referees undertake to hear appeals in such case, th.-y may be charged with costs personally (Id. ). The ordei' of the commissioners should be reversed where it directs the laying out of a road through buildings, miUs, and fixtures and yards appurtenant to them, without the owner's consent (Clark v. Phelps, 4 Cow. 190). The decision of the referees laying out a road remains unaltered for the term of four years from the time the same shall have been filed in the of&ce of the town clerk (L. 1847, ch. 455, § 9). APPEALS FROM COMMISSIONERS OF HIGHWAYS. T.Go' An adjournment of the hearing may be made by the referees, as they think proper (People v. Ferris, 41 Barb. 124). The referees may amend their order after filing same (Woolsey v. Tompkins, 23 Wend. 324 ;. Eogers v. Runyan, 9 How. 248). S66 EEFEBENCES UNDER MECHANICS' LIEN LAW. CHAPTER IV. Beferences under Mechanics' Lien Law. § 1. The Statute. Form of Referee's Report. § 2. Decisions under Former Statutes. § 1. The statute. — By the provisions of section 8 of ch. 342 of the Laws of 1885, the practice upon refer- ences in actions to foreclose mechanics' hens is assimi- lated to that upon foreclosure of mortgages. The sec- tion is as follows: " The manner and form of instituting and prose- cuting any such action (foreclosure of mechanic's lien) to judgment, or an appeal from such judgment, shaU be the same as in actions for the foreclosure of mort- gages upon real property, except as herein otherwise provided." The rules of practice .and forms in the chapter on foreclosure of mortgages apply mth equal force, muta- iis mutandis, to actions to foreclose mechanics' liens and it is unnecessary to repeat them. In these actions, issues of fact would more frequently arise than in actions to foreclose mortgages. Such issues would be tried by the com-t or by a referee to hear and determine, and the entire controversy would be settled in one report, and judgment of foreclosure rendered thereon. The following is a form of such report: REFERENCES UNDER MECHANICS' LIEN LAW. 367 Form of referee's report. TiUe. To the justices of the supreme court of New York. I, , the referee nained in the order entered herein, on , by ^hich it was referred to me as sole referee, to hear and determine the issues herein, do respectfully report as follows : That I have been attended by the parties to this action with their respective counsel [or, caused them to he duly sumTnoned, etc,, if they did not apj)ear] and having taken the oath prescribed by law, I have heard the proofs and allegations of the respective parties, and find and decide as follows: As Matters of Fact. Fvrst. That at the times hereinafter mentioned, the defendant, , was the owner in fee of the premises described in the complaint in this action. Second. That on or about , plaintiff and defendant entered into a certain contract, whereby plaintiff agreed [set forth substance of the contract], for which defendant agreed to pay the sum of dollars [or, as the case may ie.] Third. That plaintiff has duly performed all the condi- tions of said contract on his part. Fourth. That [the lahor or materials were performed or furnished in the erection of a building cr other structure on the premises described in the complaint, as laid doion in the first section of the act^, and were intended by the par- ties hereto to be so [^performed or furnished] pursuant to and in conformity with the terms of the contract aforesaid. Fifth. That said sum has not been paid, nor any part thei-eof. Sixth. That within ninety days after the completion of the said contract, to wit: On , the plaintiff caused to be filed in the ofiice of the clerk of county, a notice of claim and lien on and against said buildings and land {which are situate in said county) for said sum of dollars, the amount due on said contract as aforesaid. 368 REFERENCES UNDER MECHANICS' LIEN LAW. That said notice was in the form prescribed by, and con- tained all the statements required by, and complied in all respects with the Laws of New York for 1885, chapter 342,. § 4, usually called the mechanics' lien law, in such case made and provided, and was so filed pursuant to said statute. That on , said lien was duly entered and docketed by said clerk, on the lien docket kept in his office. \Th& report should also state whether the Men still remains or has ieen discharged; the filing of the lis pendens, and the other facts which mvst ie proved in special cases.] And as Conclusions of Law: First. That under and by virtue of the contract afore- said, the defendant was, at the time of the commencement of this action and still is, justly indebted to the plaintifE in the sum of dollars, with interest thereon from Second. That plaintifE acquired, and now has [or had on , if the lien has heen discharged] a good and valid lien for the said sum, on all the right, title, and interest which the defendant had on [date of filing notice of lien] in and to the premises described in the complaint. Third. [If the lien has heen discharged, or if any special facts have heen proved set out the proper conclusion here.] .Fourth. That the plaintiff is entitled to judgment against the defendants [follow the forms of judgment in foreclosure so far as applicable] and in case said proceeds be insufficient to pay the sums aforesaid, plaintiff is entitled to judgment against the defendant for the deficiency sa remaining. And I order and direct judgment accordingly. All of which is respectfully submitted. Dated. A. B., referee. § 2. Decisions under former statutes. — We append a few cases which arose under former statutes, now super- seded by ch. 342, L. 1885. In O'Donnell v. Eosenberg (14 Abb. Pr. [N. S.] 59), it was held, under the mechanics' lien act relat- ing to the city of New York, that the referee had no REFEKENCES UNDER MECHANICS' LIEN LAW. 369 authority to render judgment for plaintiff in an action to foreclose a lien after the lapse of a year from fiUng the notice, unless it affirmatively appeared in evidence that the lien had been continued, and a new docket made stating that fact. In Morgan v. Stevens (6 Abb. N. 0. 356), the pro- cedure upon a reference in an action to foreclose a mechanic's lien with particular suggestions as to the form of the decree to be entered upon the referee's report, is reviewed at length. The referee, at page 365, concludes : " A decree in accordance with the referee's report must be drawn up, and should include all the separate judgments and costs, and allowances, for and against the respective parties, and the practice is to have it settled by the referee who tried the issues, with or without notice, in his discretion, and his approval thereof indorsed upon it, and then it is entered by direction of a judge (who may then designate the person to sell), or by the clerk of the court, ^s pro- vided by the Code of Civil Procedure, section 1228. When the judgment gives special reUef, it must be entered by direction of a judge, the same as formerly. In all cases it should be entered in form as done by authority of the court, with the usual caption in such cases. There may be separate executions upon this, judgment (Code, § 13Y4). If no person is named as referee to sell, an execu- tion, directed to the sheriff for that purpose, must be issued against the specific property (Suydam v. Holden, 11 Abb. Pr. [N. S.J 329, n). There must he as many separate sales of the owner's interest in the property as there are Hens established for they attached at different times, and the owner's interest may be varied, and incumbrances may have intervened. It is still the contractor's interest and right to see that the sales are properly made, and to obtain the best price, and that the personal judgments against 24 3Y0 REFERENCES UKDER MECHAJiTICS' LIEN LAW. the owners for a deficiency are efficiently enforced (see McLean v. Tompkins, 18 Abb. Pr. 24), for the con- tractor is also liable for the amount of the judgment (excepting the costs of this htigation on the part of the owners), and must pay it if it is not collected out of the property or from the owners. If the contractor pays it first, she can then enforce this judgment for her own benefit. The decree may be settled by the court (Chamberlain V. Dempsey, 36 N. Y. 144), and may be entered with- out notice. If it is not in accordance with the referee's lepoi t, it must be corrected on motion (Campbell v. Seaman, 63 N. Y. .568). An appeal in such questions is not the proper remedy, until after hearing the par- ties on the motion (People v. Goff, 52 N. Y. 434 ; and see Coope v. Bowles, 18 Abb. Pr. 442)." In Ward v. Kilpatrick (1 Month. Law Bui. 31), it was held, however, by Chief Justice Daly : "In an action to foreclose a mechanic's lien filed under the Act of 1875, after a trial by a referee, who is to hear and determine the issues, the decree in accord- ance with his report should be entered upon it by the clerk of the court as a matter of course, without any special direction of the referee, and without any appli- cation to the court, and without notice, although it directs that a sum of money deposited by the defend- ant owner be paid to the plaintiff or his attorney." Under section 7, ch. 500, Laws of 1863, it was held that a reference of the proceedings to foreclosure a mechanic's lien must be of the whole matter. After the court had commenced the trial there was no power to send the case to a referee to take and state the account between the parties (Sheahy v. Tomhnson, 1 Weekly Dig. 24). Under the Laws of 1873, ch. 489, sections 6, 11, 14, 15 and 24, the court had power to appoint a referee to sell and report deficiency in the same general mode as in foreclosure of mortgages (Q-auhn v. MiUs, 2 Abb N. C. 114). REFERENCES UNDER MECHANICS' LIEN LAW. ' 371 Under the Act of 1863, wher) the owner admitted (that a certain amount was due by him under the con- tract, and that amount was insufficient to satisfy all the Hens, so that the question of priority of liens became material, it was held that the report of the referee .should be, as the statute directs, in a summary manner, as in claims to surplus moneys in mortgage cases, to -enable the court to distribute the fund to the parties •entitled to it (Hubbell v. Schreyer, 4 Daly, 362). Such a report does not, when filed, like a report upon the issues, stand as the decision of the court, but eight days must elapse after the service of notice of the filing of it, that exceptions may be filed and served, which exceptions must be heard and passed upon at the Special Term, before the report is confirmed or becomes absolute (Id.). 372 KAISING FUNDS TO BUILD OR REPAIR BRIDGES. CHAPTER V. Eeferences Under the Act Providing for Eaising' Funds to Build or Eepair Bridges. § 1. The statute.— The title of Chapter 630, L. 1857 [2 R. S., 7 ed., p. 1260], and sections 1 and 2 thereof are- as follows : "An act further to provide for the raising of funds by tax to pay for the building or repair of bridges across streams dividing toAvns or counties. " Whenever adjoining towns are liable to make or maintain any bridge over streams dividing the same, it shall be lawful for three freeholders, by a petition in wi'iting, to apply to the commissioners of highways in each of such towns to build, rebuild or repair such bridge, and in case of the refusal of such commission- ers so to do, said freeholders, upon affidavit and eight days' notice of motion, copies of which shall be served on each of said commissioners, may apply to the Supreme Court at Special Term, to be held in the judi- cial district where some part of the bridge is located, or to a judge of said court, for a rule or order requiring paid commissioners to build, rebuild, or repair such bridge, and such court or judge may, in doubtful cases, refer the matter to some disinterested persons to ascer- tain the requisite facts in relation thereto, and to re- port the evidence thereof to said court or judge. Upon the coming in of such report, in case of reference, the court or judge shall make such order therein as the- justice of the case shall require. " Upon a reference so ordered, the referee shall ap- point a suitable time and place for taking the evidence, and shall notify, or caused to be notified, one of saidl freeholders, and said commissioners. RAISING FUNDS TO BUILD OR REPAIR BRIDGES. 373 " He shall have power to issue subpoenas for wit- messes at the instance of either party, and may compel the attendance of such witnesses, on failing to appear in obedience to such subpoenas, by attachment, and ■may punish defaulting witnesses for contempt by fine or imprisonment ; he shall have power to adjourn such proceedings from time to time, and to adnainister the requisite oath to witnesses before him. The referee shall report the evidence taken before him to the court or justice who made the order of reference without un- necessary delay, and shall be entitled to three dollars a .day for his services, to be paid in the first instance by .the said freeholders." Form of order of reference. At a special term, etc. Present, Hon. Justice. In tlie matter of the petition of the free- holders of the town or , to com- pel the eoiiimissioners of highways, of the towns of , to repair the bridge called A motion having been made in the above entitled matter -for an order requiring the commissioners of highways of the ■said two towns to build, rebuild or repair the bridge called , which bridge unites said towns ; upon filing due proof of service, now after Iiearing, etc., it is ordered, that it be referred to A. B., Esq., a disinterested person, who is hereby appointed referee for the purpose, to ascertain the irequisite facts in relation thereto, and to report the evidence thereof to this court [or to me], with a view of determining what proportion of the expense each town shall boar, and -the length and limits of said bridge, and in the meantime, neither town shall be prejudiced by the joint action of the ^commissioners herein imposed. 374 SUPPLEMENTARY PROCEEDINGS TO COLLECT TAXES, CHAPTEE VI. References in Supplementary Proceedings for the: Collection of Taxes. § 1. The statute. — The reference is proTided for by chapter 361, Laws of 1867, amended by chapter 446, Laws of 1879, and chapter 640, L. 1881 [See 2 R. S., 7th ed., p. 1014]. § 1. When a tax exceeding $10 in amount, levied by the board of supei'visors of a county against a person, firm, estate or corporation, residents thereof, or by the .board of trustees of a village against a person, firm, estate or corporation, residents of the county in which such village, or the principal part thereof, is located, is returned by a town or village collector uncollected, for want of goods or chattels out of which to collect the same; the supervisor of the town or ward, or the county treasurer, and the president of the village as to a vil- lage tax, within one year thereafter, may apply on. affidavit to the county judge, or special county judge, of the county, and obtain an order requiring such per- son, firm, estate or corporation to appear before such county judge or before a refei-ee named in such order, and answer concerning his, their or its property. The same proceedings may in all respects be had as in cases. supplementary to execution, and the same costs and disbuisements may be alloived against the person, firm, estate or corporation examined concerning his, their or its property, but none shall be allowed in his, their or its favor. The tax, if collected, shall be paid over to the county treasurer, or to the supervisor of a town to which the same may belong, and in the case of a vil- lage tax. to the treasurer of the village to which th& SUPPLEMENTARY PROOEEDINGS TO COLLECT TAXES. 375 same belongs, and the costs collected shall belong to the party instituting the proceeding, and shall be ap- plied by him to the payment of the e:!:penses of such proceeding. A county treasurer shall have no addi- tional compensation for such proceeding ; a supervisor shall have no other compensation, except his per diem fees for time necessarily spent in the proceeding ; and a president of a village shall have no compensation for such proceeding. § 2. This act shall apply to all villages, whether in- corporated by special act or under the general acts pro- viding for the incorporation of villages, and shall also apply to aU. cases where returns have already been made by toAvn or village collectors, as well as to all cases which may hereafter arise, provided that the proceeding be commenced within one year after the collector has made his return. § 3. Eepeals all inconsistent acts and parts of acts in so far as they are inconsistent [For the principles regu- lating references in proceedings supplementary to exe- cution, see the chapter devoted to that titW}. 376 SALE OF RELIGIOUS CORPORATIONS' LAND. CHAPTEE Vn. Eeferences IN Proceedings to Sell the Eeal Estate OF Eeligious Corporations. § 1. The statute. — The statute authorizing these sales is found in chapter 60, Laws of 1813 [See 2 E. S., Tth ed., p. 1661], as follows : § 11. And be it further enacted, that it shall be law- ful for the chancellor of this State, upon the applica- tion of any religious coporation, in case he shall deem it proper, to make an order for the sale of any real estate belonging to such corporation, and to direct the application of the monies ai'ising therefrom by the said corporation to such uses as the same corporation, with the consent and approbation of the chancellor, shall conceiva to be most for the interest of the society to which the real estate so sold did belong. Provided, that this act shall not extend to any of the lands granted by this State for the support of the gospel. § 2. Procedure. — The jurisdiction formerly exercised by the chancellor in these proceedings is now vested in, and carried out by the supreme court. In addition thereto the county courts (§ 340, subd. 4, Code Civ. Pro. ) and the superior city courts (§ 263, subd. 9, Code Civ. Pro.) have also jurisdiction. In practice the application is made upon a verified petition by the board of trustees, setting forth fully the resolutions of the trustees to sell, a description of the real estate, and all the facts showing the necessity or desirabihty of the sale. To the petition the resolutions are attached, duly attested by the proper officer. The usual course upon the presentation of the petition is for the court to grant the order, giving the corporation per- SALE OF RELiaiOtrS CORPORATIONS' LAND. 37T mission to make the sale and to execute a conveyance of the property, and references are ordered only in rare instances. The court is, of course, vested with power to order a reference, but it does not usually exercise the power in these proceedings, unless the application to sell is contested, or the court is not satisfied with the good faith of the appUcation. If a reference is ordered, it is to take proofs and report the evidence, or to take proof and report with the referee's opinion. Upon the coming in of the report, the appropriate relief is granted. 378 EEFERENCES UNDEE REVISED BANK LAW. CHAPTEE vrn. References under the Eevised BAi^rK Law (Chapter 409, Laws op 1882). § 1. Examinations ordered by superintendent of banking^ department. — Section 12 of the statute above cited, a& amended by chapter 47 of the Laws of. 1884, provides ^ It shall be the duty of the superintendent of the bank- ing department, in his discretion, if he shall deem it proper, to personally examine the books, papers and affairs of any bank, banking association, individual banker, or corporation required to report to him by section two hundred and nineteen of this act [Ch. 409, L. 18S2] ; or said superintendent may, at anytime,, in his discretion, designate some competent person to make such examination. The person so designated shall forthwith examine fully into the books, papers and affairs of such bank, banking association, individ- ual banker or corporation, and report to the superin- tendent on oath, the result of such examination. A, copy of said report may forthwith be published in the manner prescribed in section twenty of this act [Ch. 409, L. 1882^, in respect to the pubUcatiou of quarterly reports. The expense of every such examination, if any, shall be paid by the corporation examined, in such amount as the superintendent shall certify to ba just and reasonable. Whenever such examination shall be made by the superintendent in person, or by one or more of the regular clerks in his department, no charge shall be made, except for necessary traveling and other actual expenses. No person so designated by the superintendent, as provided by this section, shall be appointed receiver of any bank, banldng asso- EEFEEENCES UNDER REVISED BANK LAW. 379" ciation, individual banker or corporation whose books, papers and affairs he shall have examined pursuant to the provisions of said section. § 2. Reference upon application of creditors. — Section 19 of Eevised Bank Law (Ch. 409, L. 1882), provides that upon the application of creditors, or shareholders, of any banking association, whose debts or shares shall amount to one thousand dollars, and stating facts, veri- fied by affidavit, the supreme court may, in its discre- tion, order a strict examination to be made by a referee, of all the affairs of such association, for the purpose of ascertaining the safety of its investments, and the prudence of its management ; and the result of every such examination together with the opinion of the referee and of the supreme court thereon, shall be published, in such manner as the supreme court shall direct, which shall make such order in respect to the expenses of such examination and publication as- the court may deem proper. 380 EEFERENCES UNDER PLANK ROAD ACT. CHAPTER IX. References on Appeal from Order of County Court under the Act Providing for the Incor- poration OF Plank Eoad Oompames. § 1. The statute. — The Act is found in chapter 487, Laws of 1851. [See 2 R. S. Yth ed. p. 1342]. Its pro- Yisions are substantially : Upon an appeal to the supreme court from an oi'der of the county court, changing the location of a gate upon a turnpike or plank road, pursuant to above act, hereby amended, the supreme court shall, on proper notice, appoint three ■disinterested persons not residents of any town through which such road shall run, or to and from which such road shall be a principal thoroughfare, referees to hear, try and determine the said appeal. Such referees shall view the premises and the loca- tion of tlie gate, shall proceed upon the reference as upon references in civil actions, and shall report their decision to said supreme court, together with the evi- dence taken by them, and the grounds of such de- cision. Such report may be reviewed by the court, and judg- ment given thereon, as justice and equity require, and such judgment shall be final and conclusive. The conipensation of the said referees shall be the same as provided by law for referees in civil actions, and shall in the first instance be paid by the party in whose favor the report and decision shall be ; and said supreme court shall award judgment therefor, together with reasonable costs and expenses. Said judgment shall be entered with the order and judgment of said court affirming or reversing the order of the county court, and thereupon the party succeeding may issue execution thereon, and collect and enforce the same as .upon judgments in civil actions. INSOLVENT MUTUAL INSURANCE COMPANIES. 381 CHAPTEE X. References under the Act for Closing up Insolv- ent Mutual Insurance Companies. § 1. The statute.— The provisions of chapter 412, Laws of 18G3 [see 2 E. S. 7th ed. p. 1517], are as follows: An act to facilitate the closing up of insolvent and dissolved mutual insurance companies. If any controversy arises between the receiver of an insolvent or dissolved mutual insurance company and any member or stockholder of such company, in the settlement of a claim against such member or stock- holdei', or if the same remains unpaid after personal demand, the same may, by consent in writiilg, be referred to a sole referee ; or upon ten days' notice of the application therefor, any justice of the supreme court, residing in the district where the receiver keeps his office, ma}' appoint a sole referee'to determine the con- troversy. The notice of the hearing is the same as in actions- in the supieme couit, and the prevailing party recov- ers his disbursements only, except that upon appeal,- the allowa.nco of costs is discretionary with the court. The referee has the same power to issue a commission to take testimony, as a justice of the peace. The language of section 2, relating to proceedings before the referee, is as follows; ' ' Section 2. The referee so appointed, shall proceed in a summary manner to hear the proofs and allega- tions of the parties upon written or oral pleadings, and shall have the same powers and be subject to the same duties and obligations, and shall receive the same com- pensation as referees appointed by the supreme court in personal actions pending therein, and upon his- 383 INSOLVENT MtJTTJAl, INSURANCE COMPANIES. report a judgment may be entered in said court, and be ihe judgment of said court, in the same manner. The supreme court may, on appeal from said judgment to the general term, set aside the report of said referee ; Isut no appeal from such judgment shall suspend or delay the execution thereon, unless there shall be fded with the notice of appeal to the clerk of the court, a certificate of the justice of the supreme court, to the effect that there is probable error in the said judgment; nor unless security be given to the satisfaction of said justice, for the payment of said judgment, and the costs of the appeal if said judgment be affirmed." In Sands v. Birch, 29 How. Pr. 305, it was held that the receiver has his option either to commence an action in the usual way, or institute a reference under the statute. It is further held, in the same case, that so far as the act authorized references in pending actions, it only applied to actions then peiiding. Where the referee in valuing the outstanding policies simply examined on oath an actuary, and on his testi- mony determined their value, it was held on appeal that the case presented no questions at law (Reese v. Smyth, 95 N. Y. 649). The above act is not unconsti- tutional, as depriving a party of the right of trial by jury. The cases in which references are contemplated under the act, are not cases where trial by jury has been heretofore used within the meaning of the con- stitution (Sands Receiver v. Eambark, 27 N. Y. 147). TRUSTEES OF INSOLVENT, DEBTORS. 383 CHAPTER XL Eeperences on Application op Trustees op Insolvent Debtors. § 1. The statute. — By the provisions of part 2, chap. 5, title 1, art. 8, R.S.,as amended by chapter 373, Laws of 1862 [see 7th ed. pp. 2269 and 2270], a, controversy in reference to the settlement of demands in favor of or against the insolvent estate may be referred. The reference may be made bj'' consent in writing of all parlies concerned, or in default thei'eof, either party may apply to the officer appointing the trustee, or to a.ny justice of the supreme court at chambers, residing in the same district as the trustee, on ten days' notice of motion, for the selection of a referee (§ 20). A referee is thereupon selected according to the usual practice of the supreme court. Such a I'eferee has the power to issue a commission for the eiiamination of witnesses residing without the county of the trustee's residence, in like manner as justices of the peace, and their testimony so taken may be read upon the hearing of the controversy (§ 22). The referee having been selected by agreement or, as prescribed, by the proper officer, the wiitten consent, or certificate of appointment, must be filed with the clerk of the supreme court, in case the trustee wfis appointed by vii'tue of article 1 of tit. 1 of ch. 5 of the Eevised Statutes (relating to attachments against absconding, concealed, and non-vesi lent debtors), and in all cases may be so filed, though it is ijroper to file it with the clerk of the court of common pleas of the county where the trustee resides, in other cases than those mentioned in article 1. The clerk thereupon enters a rule appointing such person referee (§ 23). 38il: TRUSTEES OF INSOLVENT DEBTORS. The referee so appointed has the usual powers of referees in personal actions, and the report of the referee, filed in the same ofiBce, is conclusive upon the parties, unless set aside by the court (§§ 24 and 25). Such a referee will not be appointed on motion unless some previous attempt to select the referee by agreement is shown (Wickham v. Frazee, 13 Hun, 431). The word "demand " in this section is broader than "debt," and includes claims not embraced in the latter (Matter of Denny, 2 Hill, 220), LIENS FOR CLAIMS AGAINST SHIPS AND VESSELS. 385 CHAPTER XII. Eefeeences as to the Validity op Liens for Claims Against Ships and "Vessels. § 1. The statute.— By the provisions of sections 23 and 24 of chapter 482, L. 1862 [see. 3 R. S. 7th ed. p. 2409], where there is a contest as to the validity of claims against ships and vessels, and liens therefor, upon the issuing of a warrant of attachment under said act. " The issues between such contestants shall be tried before a judge in hke manner as other issues which are authorized by law to be tried before- a judge, and at some early day to be fixed by the officer who issued the warrant, and the same may be referred by such officer to some competent referee, to hear and deter- mine the same in like manner as in civil actions. Either party may have the same right to except to ,and appeal from the report of such referee or the decision of such judge as in civil actions, and on such appeal the finding of such referee or court, both of law and of fact, shall be examined, and may be reversed or modified, or a new trial may be ordered. Judgment for costs shall be rendered in favor of the successful party as in personal actions, and the successful party shall be entitled to recover the costs and allowances provided for in the Code of Procedure in civH actions." 35 GENERAL INDEX. fOB FOimS, CONSULT THE SEPARATE INDEX THERETO AT THE END OF VOLUME. Page ABSENCE. Evidence taken in, of party's attorney, 74 ABSENTEES. Whether referee's oath may be dispensed with in case of, 62 In actions to foreclose mortgages, 220 In actions for dower, 253 ACCOUNT. Defined, 18 Mutuality in, 14 Long — ^requisites of, IS A few items do not make a long, 16 Long, made up of items, composed of numerous smaller items, IT Cannot be regarded as long, because made up of the mere items of a single employment, 17 Distinguished from bill of particulars, 17 To be necessarily involved, to entitle to a compulsory refer- ence, 18 To be directly involved to entitle to compulsory reference, 18 Dlustrations that it must be directly involved to entitle to compulsory reference, 18 Claiming a long — estoppel, 21 Stated, 21 Appeal from order of reference, because there is no evi- dence of an, 46 Appeal from order of reference, where some or conflicting evi- dence of an, is presented, 47 'Whether icferee should take in references to hear and deter- mine, ' 106 [387] 3S8 GENERAL INDEX. Pagff ACCOUNT, REFERENCE TO TAKE. Principles regulating, 201 to 204 V Inherent power of court to order, 201 Procedure upon, 202 Examination of witnesses, 202 Account to be brought in form of debtor and creditor, 203 Accountant may prepare, 203 Referees duties upon the reference, 203 Has no control oyer the issues, 203 Objections to be made, 20S What items referee to state in his report, 203- ACCODNTING IN SURROGATE'S COURT. References upon, 322 ACCOUNTING UNDER GENERAL ASSIGNMENT ACT. References upon, 850 ADJOURNMENTS. Principles relative to, 51 to 54 See also Bringing on Refbrbncb op ire Issues. Referee's compensation for, 163 Of sales in foreclosure of mortgages, 231 In supplementary proceedings, 304 On appeals from commissioners of highways, , 365- ADMEASUREMENT OF DOWER. Referee's duties respecting, 254 ADMINISTRATOR. Costs in action^ against, 108- Eeference by, of disputed claims against deceased's estate, 339 to 348 ADTERTISEBIENT. By referee in foreclosures of mortgages, 230 References as to surplus, after foreclosure by, 254 ADVICE. Referee desiring from attorneys, 94 AFFIDAVITS AND DEPOSITIONS, REFERENCES TO TAKE. Principles regulating, 206 to 208- Wlien ordered, 206- Upon -what papers 206' Who may object to order of reference, 206- Referee may ask questions upon, 208 Cannot be ordered to examine party to action, 208 AGREEMENTS. Compulsory reference of the issues in action to set aside fraud- ulent, 27" Respecting delivery of report, 115 For greater fees of referee than are given by statute, 159> GENERAL IND!eX. 389 ALIMONY AND COUNSEL FEES. Keferences on application for — principles regulating, 289 to 298 Pendente lite, 289 to 29T The statute, 289 In annulment of marriage, 290 Upon what papers application is made, 291 Procedure on the hearing of the motion, 293 Upon what the referee is to report, 294 Amoupt reported not conclusive, 295 Permanent alimony, 297, 298 Ordering reference to ascertain permanent alimony, 297 Procedure, when ordered, 298 ALLOWANCE Referee awarding extra, 109 AMENDMENTS. Party not bound to wait for, of opposite party before moving for a reference, 29 Eeferee permitting, 69 Power of referee under §§ 723, 1018, Code Civ. Pro. 83 to 84 Conforming pleadings to the proofs, 83 Power of referee to allow under former Code of Procedure, 84 To proposed case, 130 Presenting with case, for settlement, 131 ANNULMENT OF MARRIAGE. See Matrimonial Actions. APPEAL. From order of reference to hear and determine, 4fi Stipulation on, from order of reference, 47 From order vacating order of reference, 48 Presumption upon, that all the referees met, 111 Settling case on, 127 to 138 From judgment, 139 to 140 To court of appeals, 143 to 140 To General Term of Supreme Court, or of superior City Court from judgment, 146 to 149 In interlocutory references, 198 APPEAL FROM COMMISSIONERS OF HIGHWAYS. References on, 360 to 364 APPEAL FROM COUNTY COURT. References under Plank Road Act, 380 APPEAL FROM JUDGMENT. General principles governing, 139 to 149 When the proper remedy, 139 How taken, HO Security on, 140 390 GENERAL INDEX. Page APPEAL FROM JUDGMENT.— eo7i«m«ei. Who may, 140 Errors deemed sufficient for a reversal, 141 What is brought up by an, 141 Facts supplied by intendment on, 141 Presumptions to support the judgment, 142 Power of appellate court to render appropriate judgment, 143 Appeal to court of appeals, 143 to 146 Appeal to court of appeals from reversals, 144 Appeal to court of appeals from affinnances, 145 Appeal to the general term of the supreme court, or of a superior city court, 146 Review of facts, on appeal to general term, 146 Principles applied by general term in reviewing the facts, 147 Efiect of reversal of judgment on the order of reference, 148 APPEARANCE IN THE TRIAL. Effect of, as waiving objections to non-referability of the issues, 12 APPLICATION OF TRUSTEES OF INSOLVENT DEBTORS. References upon, 383 APPLICATION TO THE COURT. To compel party to proceed -with reference, 50 For an adjournment, 52 To dismiss complaint under § 822, Code Civ. Pro., for want of prosecution, 67 As to how referee should pass upon objections to evidence, 75 For failure to proceed with reference, 150 Before trial, for bias, 150 For failure-of referee to proceed, 150 Pending the trial, 151 After report rendered, 152 APPOINTMENT AND SELECTION OF REFEREE. To hear and determine, 35 to 41 Necessary qualifications, 35 Attorney to be in good standing to be chosen, 35 Laymen acting as referees, ' 35 Partner or clerk of attorney or counsel, when not to be ap- pointed referee, 35 Disqualifications, 36 Judges, certain, not to act as referees, 36 Attorneys not to be appointed in cases where they have acted as public officials, 37 Clerks of court — when not to be appointed, 37 Bias, 8 7 Attorneys' bills — special considerations aSecting references of 88 Residence of referee, 89 GENERAL INDEX. 391 Page APPOINTMENT AND SELECTION OF UEFIi'KEE.—eontinued. New trial before old referee, 89 Beferces to sell in second judicial district,^ 89 Number of referees, 40 Waiver of disqualifications, 40 Illustrations of waiver of disqualifications, 40 Constitutional prohibition against certain judges acting as ref- erees cannot be waived, 41 Irregularities in, how waived, , 44 Appointment in matrimonial actions, 283 In Surrogates' courts, 820 APPORTIONMENT. Of fees in diflferent actions, 165 ASSIGNMENT. Of interest by party pending deliberation upon case by ref- eree, 97 ASSIGNMENT ACT, REFERENCES UNDER. Principles regulating, 849 to 359 On accountings, 349 Courts having power, 849 Procedure on accountings, •■ 350 Rules of court of common pleas, ' 850 References to examine witnesses and books (§ 21), 856 For what purpose, the same may be ordered, 357' Extent of inquiries upon, 357' "When may be ordered, 357 Necessity for the examination to be shown, 357 Or that benefit will be derived therefrom, 357 Requisites of order directing, 358 Opinion of referee, 358 Referee asking questions, 858 Report, 359 References on application by assignee to compromise claims (§2G), 359 References of disputed claims (§ 26), 359 ATTORNEY. See also Counsel. From what acts of, consent to a reference of issues maybe im- plied, 4 Making affidavit for motion to refer the issues, 30 When partner or clerk of, not to be appointed referee, 35 Party's, when not to be appointed referee, 35 Referee to be an, 35 Not to be appointed referees where they have acted as public offlicals. "~ 392 GENERAL INDEX. Page ATTOTiyEY.— continued. Whether competent to act as referee on reference of attorney's claims, 38 Administering oath to referee, 63 Referee desiring consultation or advice from, 94 ATTORNEY'S BILLS. ; Compulsory references of the issues in actions upon, 26 References in cases of, to an attorney, 38 ATTORNEYS, REFERENCES IN THE EXERCISE OF CON- TROL OVER. Principles regulating, 213, 214 In what cases ordered, 213 Illustrations, 213 Extra allowance, 214 BANK LAW. References under the revised (oil. 409, L. 1882), 378 Under § 12, 378 Under § 19, 379 BIAS, Inferences of, as preventing the appointment of a referee, 87 Of referee — ground for application to the court, 150 Application to the court on account of, pending the trial, 151 Motion to set aside report, etc., for, 158 In references upon appeals from commissioners of highways, 364 BILL OF PARTICULARS. Serving defective, or failure to serve at all, as affecting motion for a compulsory reference, 10 Distinguished from account,. 17 BOOKS AND PAPERS. Of corporations, how produced before referees to hear and determine, 56, 57 Referee's control over, in interlocutory references, 192 How production secured in supplementary proceedings, 303, 304 BRIBERY. Of referee — definition and punishment, 96 BRIDGES. REFERENCES UNDER ACT PEOTIDING FUNDS TO REPAIR OR BUILD. The statute, 872 BRIEFS. Submission of, 93 BRINGING ON INTERLOCUTORY REFERENCES. Method of, 191 BRINGING ON REFERENCES OF THE ISSUES. Principles regulating the, 49 , GENERAL INDEX. 393 Pago BRINGING ON REFERENCES OP THE ISSVUS.— continued. Referee appointing day, 49 Notice of trial, 60 Who may give notice of trial, 60 Necessity of notice of trial, 60 Informal notice of trial — how waived, 60 EfEect of notice of trial, 50 Neglect to prosecute the reference, 50 Place of trial, 51 Postponements and adjournments, 61 to 54 Power to grant postponements and adjournments, 52 Majority of the referees may grant postponement, 62 Referee adjourning on his own motion, 52 For what purposes adjournments and postponements, 52 Applying to the court for an adjournment, 52 Imposing terms on granting postponement, 53 Refusal to adjourn, 53 Granting an adjournment, 53 Formal adjournments, 54 Eflfect of adjournment, 54 CASE. See Settling the Case. CHANCERY PRACTICE. In interlocutory references, 188 CLAIMS AGAINST DECEASED'S ESTATE. References of disputed, by executors or administrators, 839 to 348 CLERK OF COURT. When not to be appointed referee, 37 Acting as referee in surrogate's courts, S20 May administer oath to referee, 63 CODE CIVIL PROCEDURE. § 8, , 171 § 9, 171 § 10, 171 § 11, 171 § 14, 169 § 90, 320 § 531, 10 § 623, 209, 2!3 § 624, 213 § 625, 213 5 721, 63 § 723, 83 § 755,, 97 5 763, 97 894 GENERAL INDEX. CODE CITIL VILOCEDVKE.— continued. . § 764, 9T § 765, 88 § 766, 98 § 822, 67 § 827, 188 § 842, 805 § 842, 63 § 845-848, '■0 § 849, 71 § 850, Yl § 851, 71 § 852, 66. § 854, 55- § 866, 67 § 867, 66- § 869, 68 § 885, 206 § 992, 87 § 993, 87 § 994, 12a § 997, 127, 133 § 998, 12& § 1001, 140 § 1004, . 140, 198- § 1011, 2, 5, 89 § 1012, 2- § 1013, 7, 199 § 1014, 8 § 1015, 194, 200' § 1016, 61, 192- § 1017, 55 § 1018, 60, 52, 73, 83, 170 § 1019, 113 § 1021, 107 § 1022, 106, 109 § 1028, 86 g 1024, 85 § 1026, 66, 111 § 1028, 104 § 1214, - 208 § 1215, 208 § 1216, 819, 221 § 1219, 209, 222 § 1226, 200 GENERAL INDEX. 395 Page CODE CITIl VBOCEDVUE.— continued. ' § 1228, 121 § 1229, 140, 19S § 1232, 28& § 1242, 261 § 1243, 229 § 1289—1292, 140 § 1294, 140 § 1S516, 198. § 131T, ua § 1338, 143 § 1346, 146 § 1347, 198 § 1545, 248 § 1546, 248 § 1561, 2C5 § 1502, 255 § 1577, 252 § lOOT, 263, 254 § 1609, 254 §1010, ^ 264 § 1011, 255 §1621, 255 § 1022, 255 § 1023, 256 § 1024, 250 § 1026, 228 § 1076, 228 § 1753, 277 § 1757, 279 § 1769, 289 § 1772, 28i> § 1773, 290 § 1774, 268 § 1017, 79 §§ 2008-2014, 58 §§ 2262-2293, 171 § 2267, 171 § 2269, 170 § 2269-2272, 172 § 2272, 170 § 2273, 178, 178 8 2274, * 173 § 2275, 173 § 2277, 173 596 GENERAL INDEX. Page CODE CIVIL VnOCTlDVKE.— continued. ^ 2278, 173 § 2280-2382, 174 § 2283, 179 § 2284-2286, 185 § 2289, 184 s; 2291, 184 § 2:302, 312 ^ 2303, 318 S 2304, 314 S 2305,' 814 i 2308, 316 §2311,. 314 .§ 2354, . 257 § 2355, 260 ? 240T, 201 «;§ 2419-2422, 329 § 2423, 233 § 2428, 337 .§ 2429, 337 § 2430, 338 ;§ 2431, 338 § 2432, 299^ , 300 §2443, 300 § 2434, '^' 334 .§ 2444, 304, , 305 §2445, S , 305, , 309 § 24C4, 309 § 2481, 328 §2511, 321 § 2545, 328 § 254G, 319, 323, , 323 § 2776, 173 §3ir2. 205 § 3229, 109 § 3255, 53 § 3203, 120 § 3264, 120 § 3296, 158 X:OLLECTION OP TAXES. References ia supplementary proceedings for, 374 <30LLCSI0N. Bv referee pending trial. 151 -COMMJSSION. Referee has no power to iasuo, 60 GENERAL INDEX. 39T Page- COMMISSIONER OF DEEDS. May administer oath to referee, 63- COMMISSIONERS OF HIGHWAYS. Eeferences on appeals from, 860 to 364 COMMON LAW. References of the issues at, 1 COMPLAINT. Determining -whether an action is compulsorily referable, 17 Dismissal under § 822, Code Civ. Pro., 67 Dismissing for plaintiffs default, 67 Motion to dismiss on the pleadings, 68- Motion to dismiss, 82 COMPROMISE. Referee suggesting, 95- COMPULSORY REFERENCES OF THE ISSUES. General principles relative to, 7 to 28- Right to, not absolute, 8 Long account involved, basis of, 8 Considerations affecting decision of motion for, fr In United States circuit court, 8 When party may apply for, 9 Case to be at issue as to all parties, before motion for will be gianted, 9 When will be ordered, 9' How right to, affected by failure to serve bill of particulars or by defective service, 10 Good faith in bringing action, 10^ Stipulation to avoid, 11 Discrotionar)' to refer part of the issues, 11 Compelling party to stipulate to refer, 12 Effect of appearance and participation, 12 Mutuality in accounts, • 13 Account defined, 13 Illustrations showing liberality in the construction of what is deemed a long account, 15 A few items do not make a long account, 16 Long account may be composed of items made up of numerous smaller items, 17 Bill of particulars distinguished from account, 17 Complaint determining character of action in respect of, 17 Long account cannot be predicated of the mere details of a single employment, 17 How for right to, is affected by immaterial issues, 17 Interposition of counter-claim, as affecting plaintiffs right to a, 17 Illustrations that account must be directly involved, 18- 398 GENERAL INDEX. Page COMPULSORY EEFERENCES OF THE ISSUES.— eontitMied. Account to be directly involved, 18 Account to be necessarily involved, 18 Claiming a long account estopped, 21 Referable and non-referable issues joined in one action, 21 Account stated, 21 Torts, 22 Illustrations of distinctions between torts and contracts, 23 Cases of fraud, 24 In action to recover penal obligation under a statute. 25 Difficult questions of law, 25 In actions upon attorney's bills, 26 In actions upon insurance policies, 26 In actions to compel specific performance, 27 In actions to set aside fraudulent agreements^ 27 In actions to foreclose mortgages, 217 CONCLUSION. Stating in advance of report, 94 r, 28 When to be made, 28 Practice under former Code of Procedure, 28 Is non-enumerated, 29 When costs of preparing for trial may be imposed, 29 Where to be made, 29 Upon what notice to be made, 29 Notice of, 29 Preferred, at Chambers, New York county, 29 What moving party to show, 29 Venue — stating, in papers for, 30 Requisites of affidavit for, 30 General allegations insufficient in affidavit for, 30 Excuse for failure of party to made affidavit for, 30 Appeal from order denying motion, 47 MUTUALITY IN ACCOUNTS. Not always insisted upon, 14 MUTUAL INSURANCE COMPANIES. References under act for closing up insolvent, 381, 382 NEGLECT. To prosecute reference, 50 NEGOTIABLE PAPER. Action or counterclaim founded upon lost, 79 NEW HEARING. Motion for, in interlocutory references, 198 GENERAI. INDEX. 415 Page NEW PARTIES. Bringing in, in references to hear and determine, 85 NEW TKIAL BEFORE OLD REFEREE. When will not be ordered, S9 NON-ENUMERATED MOTION. For reference of the issues is a, 29 NOTARY PUBLIC. May administer oath to refei'ee, 68 NOTICE. Of entry of judgment, 130 Of execution of reference, upon application for judgment by default, 209 Of references to compute in foreclosure, 223 Of confirmation of report, in references to compute in fore- closures of mortgages, 226 Of claim as to surplus in foreclosures of mortgages, 240 Of motion to confirm referee's report in proceedings to sell infants', etc., lands, 260 Of application for judgment in references to take proof in matrimf)nial actions, 278 Of application for final order in proceedings for voluntary dis- solution of corporation, 337 NOTICE OF TRIAL. Requisites of, 50 Effect of, 60 Informal, how waived, 60 Necessity of giving, 50 Who may give, ' 60 NUMBER OF REFEREES. How regulated, 40 NUNC PRO TUNC. Power of court to permit exceptions to be filed in interlocutory references, 96 OATH OF REFEREE. Principles governing, 61 to 64 Necessity of, 61 Waiver of, 61 Administered by attorney of party, 62 How far section 1016, Code Civ. Pro. applies, 62 Waiver, 62 Attorney of party administering, 68 Who may administer the oath, 63 ' Referee cannot delegate duty to swear the witnesses, 71 In interlocutory references, 192 In references as to surplus in foreclosure of mortgages, 242 416 GENEKAL INDEX. Page OATH OF REFEREE.— co7i Settling the case, 127 to 138 Bias, partiality and corruption of, form grounds for setting aside report, etc.. Fees, Minutes of, Contempt — general principles relative to, REFERENCES ENUMERATED. ' To hear and determine issues. Compulsory references of the issues. On consent. Of attorney's bills. To decide part of the issues. Interlocutory references — general considerations respecting, 188 to 198 To determine and report upon a question of fact in an action, etc., 204 Under § 1015, Code Cir. Pro., 20O To take an account, 201 153 168 to 1G6 107 169 to 187 1 to 187 7 to 28 1 to 6 26, 38 199, 200 GENERAL INDEX. 421 Page KEFERENCES ElriVmmiATEJi.— continued. To take affidavits or depositions to be used on a motion, 206 On application for judgment by default, 208 To ascertain the damages sustained by an injunction, 209 In exercise of control over attorneys, 213 In actions to foreclose mortgages, 217 to 246 In partition suits, 247 to 262 In actions for dower, 253 to 256 In proceedings to sell lands of infant, lunatic, idiot or habitual drunkard, - 257 to 260 As to surplus after foreclosure by advertisement, 261 To sell real property, 261 In matrimonial actions — principles regulating, 262 to 288 Applications for alimony and counsel fees —principles regulat- ing, , 289 to 298 Supplementary proceedings, 299 to 311 In proceedings to discover death of tenant for life, 312 to 318 Disputed claims against deceased's estate, 339 to 348 -Under general assignment act, 349 to 359 Upon appeals from commissioners of highways, 860 to 364 Under mechanics' lien law, 3 06 to 871 Under the act providing for raising funds to build or repair bridges, 372, 373 Supplementary proceedings to collect taxes, 374, 875 Sale of religious corporations land, 376, 377 Under revised bank law, 378, 379 Under plank road act, 380 Under act for closing insolvent mutual insurance companies, 381, 382 On application of trustees of insolvent debtors, 383, 384 As to the validity of liens for claims against ships and vessels, 385 In surrogates' courts, 319 to 328 EEFUSAL. To act as referee, 39 To report, 112 To settle a case — remedy, 135 To deliver up exhibits used on trial, 153 Of witness to be sworn before improper referee in supple- mentary proceedings, 303 Of referee to adjourn in same, 304 EELIGIOUS CORPORATIONS. References in proceedings to sell the real estate of, 376, 377 iKE-OPENING CASE FOR FURTHER TESTIMONY. Power of referee in respect to, 93 422 GENERAL INDEX. Page- REPORT. Keferee stating conclusions in advance of, 94- General principles applicable to, 102 to 119 Upon what issues the referee is to pass in, 103 Referee need not pass formally upon all the issues, 103 Only one report need be made, 103 "Who entitled to custody of, 103 Findings of fact and conclusions of law to be separately stated, 104 Sending back for correction, 104 Formal requisites, ] 05 Findings of fact in — tow to be stated, 105 Conclusions of law — how to be stated in, 106 Directing judgment in, upon trial of issue of fact, 10& Interlocutory, in equitable actions, 106 ■ Directing judgment on the trial of a demurrer, 107 Ignoring in, evidence accepted on the trial, 108 Awarding costs, 108 Extra allowance in, 109 Certificate of referee as to extra allowance, 110 Who may make in the case of several referees, 111 Failure or refusal to make a report, 113 Election to end the reference, 113 To what references § 1019 applies, 113^ Party must show intention to terminate reference, 114 What constitutes a delivery of the report, 114- Agreements respecting delivery of, 115 Remedy for service,of report after election to terminate the reference, 116 Judicial functions cease with delivery of, ] 19 Remitting for correction, 153 Motion to set aside for bias,, partiality, corruption, etc., 153 Motion to set aside for irregularities in practice, 153 Filing, in interlocutory references, 19(5 Confirming in interlocutory references, 196 Review of order made ujjon, in interlocutoiy references, 198 In foreclosures of mortgages, 225, 235, 244 In partition, 250- In actions for dower, 2!")4 Of sale, in actions for dower, 25G In proceedings to sell infant's, etc., lands, 259 In proceedings for discovery of death of life tenant, 316- In references in surrogate's court, 326' REQUESTS TO FIND. General principles applicable to, 86 to 92i OENEEAL INDEX. 423 ' Page BEQUESTS TO Tmn.— continued. The statute, 86 Necessity of, 87 Refusal to find facts as requested, 88 How to be presented, 89 How referee to pass upon, 90 Waiver of § 1023 Code Civ. Pro., 90 Where rulings to be written, 92 RESIDENCE OF KEFEREE. As to referees to sell property in second judicial district, 89 As affecting appointment, 39 To sell in, foreclosures of mortgages, 229 RULES OF PRACTICE (GENERAL). Rule 11, 3 18, 264 26, 61, 209 SO, 194, 195, 250, 255 32, 87, 180, 181, 132 ' 33, 135 ' 34, 132 ' 35, 184 ' 37, 286 ' 56, 258 ' 60, 218 ' 61, 228 ' 64, 240 ' 66, 248 ' 73, 264, 266 ' 74, 267 ' 75, 267 ' 76, 267 ' 77, 277 ' 80 85, 254 '' 85, 189 RULES OF THE FORMER CHANCERY COURT. Rule 100, 191 " 102, 192 " 103, 192 " 104, 192 RULES OF COMMON PLEAS. Respecting references on accountings under general assign- ment act, OTTT TVrf^C 350 Of referee upon objections to evidence. 76 R( jferee reserving, on objections to evidence, ' 75 424 GENERAL INDEX. Page SALES. In parcels, in actions to foreclose mortgages, 220 In foreclosures of mortgages, 231 to 239 In actions for dower, 255 In proceedings to sell infant's lands, 260 References to make, of real property, ' 261 Pending application for voluntary dissolution of corporation, 338 Of real estate belonging to religious corporations, 376, 377 SEARCHES. In partition, 250 SECOND DEPARTMENT. Sales by referees, in foreclosures of mortgages in, 229 SELECTION OP EEPEREE. See Appointment. SEPARATION. See Matrimonial Actions. SERVICE OF PROCESS Objection to want of, when to be raised, 83 SETTING ASIDE FRAUDULENT AGREEKENTS. Compulsory references of the issues in actions brought for, 27 SETTLING THE CASE. General principles relative to, 127 to 138 When a case is required on appeal, 127 Who may settle the case, 129 Time when proposed case to be served, 130 Serving amendments to proposed case, 130 Presenting case and amendments for settlement, 131 What the case should contain, 182 How alleged error to be shown in, 102 Signing and annexing to judgment roll, 133 Power to make new findings, 134 Filing the case as settled, 134 Custody of the original papers, 134 Remedy for refusal to settle a case, 135 Effect of omission to make a case, 135 The referee, the arbiter as to what occurred on the trial before him, 136 Dispute as to .words upon, 136 Duties of referee in, 136 On references in surrogate's court, 828 SEVERAL REFEREES. Which of, to make report. 111 SHAM ANSWER. In actions to foreclose mortgages, 220 GENERAL INDEX. 425 Page SHIPS AND VESSELS. References as to the validity of liens for claims against, 885 SIGNING TESTIMONY. In interlocutory references, 194 SPECIAL COUNTY JUDGE. May administer oath to referee, 63 SPECIAL DEPUTY CLERK. May administer oath to referee, 63 SPECI-4L DEPUTY COUNTY CLERK. May administer oath to referee, 63 SPECIAL SURROGATE. May administer oath to referee, 63 SPECIFIC PERFORMANCE. Compulsory references of the issues in action for, 27 STATUTE. Compulsory reference of the issues in actions to recover penal obligations under a, 25 STENOGRAPHER. Fee of, as a taxable disbursement, 167 Agreement betv^een the parties respecting, 167 Liability for his fees, 168 Control over stenographer's notes, 168 Court may order notes to be filed, 168 . OflBcial, in surrogate's court, not vpithin §§ 90 or 2511, Code Civ. Pro., 321 STIPULATION. To avoid a reference, 11 Compelling party to make one to refer, 12 On motion to oppose, 33 Admitting items to avoid a reference, on motion therefor, 33 On appeal from order of reference, 47 STRIKING OUT EVIDENCE. Not allowed after trial ended, 108 SUBMISSION OF BRIEFS. Referee may give time for, 93 SUBPOENA. Principles relative to, 65 to 60 In supplementary proceedings, 804 SUMMONS. See also Interlocutory References. In supplementary proceedings, 304 In references as to surplus in foreclosures of mortgages, 242 In proceedings to sell infant's, etc., lands, 258 SUPPLEMENTARY PROCEEDINGS. References in, general principles regulating, 299 to 311 426 GENERAL INDEX. SUPPLEMENTARY PROCEEDINGS— coraiinMei. References in, for the collection of taxes, 874, 375 In what cases may be ordered, 299" Practice as to ordering references varies in difierent courts, 300 Where referee to reside, , 801 The order, of reference, 801 What the order to direct, 301 References to report evidence, 801 References to report facts, 301 Improper person selected as referee, 303 Remedy where hostile referee is selected, " 303 Witness refusing to be sworn, 803 Waiver of irregularities by appearance, 303- Securing attendance of judgment debtor and third painty with books and papers, , 303 Securmg attendance of witness, 804 Subpoena, 304 Production of books and papers by order 804 Adjournments, 304r Refusal of referee to adjourn, 304 Default, 304 Oath of referee, 305 The examination, 305 Oath of witness, 306 Scope of the investigation, 306 Limit to questions allowed, 306 Examination after ganeral assignment, 307 Judgment creditor entitled to one complete examination, 307 Functions of referee, 307 Distinction between reference to report testimony, and refer- ence to report facts, 308 Witness cannot be compelled to subscribe incorrect deposition, 308 Oath of referee to be annexed to report, 309 Appointing receiver, 309 By whom to bo appointed, 310 Notice of application for receiver, 310- Costs and disbursements, 311 SURPLUS MONEY. References as to, in foreclosures of mortgages, 239 to 24& SURROGATE. May administer oath to referee, 63 Special may administer oath to referee, 63- SURROGATES' COURTS, REFERENCES IN. Principles regulating, 819 to 328 Source of surrogate's power to refer, 319' GENERAL INDEX. 427' Page- SURROGATES' COURTS, ka.— continued. Nature generally of references, Z'M' Qualifications of the referee, 320' Consent of parties to reference, 821 Eeferences upon specific questions of fact in proceedings other than for probate or revocation of probate, ■ 321 References to examine accounts, 322 Procedure upon the accounting, 322 Eeferences in proceedings for probate or revocation of probate, 3213 Direction to surrogate's assistant to take testimony, 823 Distinctions between references, and the taking of testimony by surrogate's assistant, 324 The report, 326 Confirming report, 327 How report reviewed, 328 Fees of referees and witnesses, 328 Notice of diligence to referee, 328- SURROGATES' RULES, NEW YORK COUNTY. No. 8, 328 TAXATION. Of fees of referee, to sell in foreclosures of mortgages, 239 TENANT FOR LIFE. References in proceedings to discover death of, 812 to 318 TESTIMONY. See Reception or Evidence. Referee passing upon, in interlocutory references, 193- Witnesses signing in interlocutory references, 194 Filing with report, in interlocutory references, 193 In divorce cases, 209, 277 Surrogate's assistant taking, on proceedings for probate or revocation of probate, 323 TORTS. Compulsory references of issues in cases of, 22 Difference between, and contracts as afifecting right to com- pulsory references, 23- TRIAL. Whether new, can take place before old referee, 39 Referee appointing day for, 49 Eflfcct of notice, 50 Notice of, 50 Who may give notice of, 50 Necessity of notice of, 50 Informal notice of, 50' Place of, 51 Motion for new, 152 428 GENERAL INDEX. Page TRUSTEES OF INSOLVENT DEBTORS. References on applications of, 883, 384 UNITED STATES COURTS. References by consent in, 2, 8 Conclusiveness of referee's findings in State court, upon, 143 VENUE. Stating the, in motions to refer the issues, 30 VESSELS AND SHIPS. References as to (he validity of liens for claims against, 885 VIEW. By referee during the course of trial, 78 WAIVER. Of non-referability of issues, by appearance and partidpation in the trial, 13 Of disqualifications of referee, 40 Irregularities in appointment of referee, 44 Of want of jurisdiction, 45 Of referee's oath, 61, 62 Of referee's absence at hearing, 66 Of § 1023, Code Civ. Pro., 90 Of irregularities in practice, 153 Of failure to sign testimony in interlocutory references, 195 Of irregularities in appointment of referee in matrimonial actions, 283 Of irregularities in granting order of reference in supple- mentary proceedings, 303 WEIGHT OP EVIDENCE. Referee to hear and determine to pass upon, 77 WITNESSES. See also Receptiom of Evidence. Securing attendance of, 55 to 60 Securing attendance of in supplementary proceedings, 804 By subpoena, 55 Referee issuing subpoena, 55 Service of subpoena, 66 Production of books by order, 56 Fees of, 67 Pees of, in surrogates' courts, 828 Public records, 828 Books and papers of corporations, 828 Habeas corpus to testify, 58 Commission, 60 Formalities of swearing, 70 Referee cannot delegate his duty to swear the^ 71 GENERAL INDEX. 429' Page WITNESSES, —continued. Duties of, 73 Refusing to answer questions, 72 Counsel advising on trial before referee, 72 Consulting counsel on trial before referee, 72 Retiring for private consultation with counsel, 72 Refusing to answer, 77 Credibility of, 77 Referees as, 78 Securing attendance of, in interlocutory reference, 191 Filing testimony of, in interlocutory references, 195- INDEX TO FORMS. FOB GENERAL INDEX, SEE PAGE 387. Paga ACCOUNTS AND ACCOUNTINGS. See Interlocutory References. ALIMONY. Notice of motion for alimony pendente lite, 291 Order of reference to report upon same, 294 Order confirming referee's report, 297 Petition for alimony, 292 Report recommending allowance, 295 Report against granting allowance, 296 APPEALS FROM COMMISSIONERS OF HIGHWAYS. Notice of appeal, 361 Older appointing referees, 362 Order by referees,. 362 ASSIGNMENT ACT. Order of reference to take assignee's account, 351 Order of reference to examine witnesses and books (§ 21), 358 Report on accounting, 352 BRIDGES. Order of reference under the act for raising funds to build or repair, 373 CLAIMS AGAINST DECEASED'S ESTATE. Consent to reference, 342 Order of reference, 343 Order confirming referee's report, 347 Report, 845 BISCOYERING DEATH OF LIFE TENANT. Notice of presentation of petition, 315 Order of reference, 315 Order made upon referee's report, 317 Petition, 313 Report, 816 DRUNKARD, HABITUAL, SALE OF HIS LANDS. See Infant. [480] INDEX TO FORMS. 431 Page FORECLOSURES OF MORTGAGES. Advertisement of notice of seile, 230 Affidavit for order of reference to compute, 222 Affidavit on motion for reference as to surplus, 242, Notice of application for reference to compute and for judg- ment, " 221 Notice to confirm referee's report, etc., 227 Notice of claim as to surplus, 241 Notice of references as to surplus, 241 Notice of confirmation of report in references as to surplus, 245 Order confirming report of sale, 237 Eeport on references to compute, 225 Eeport of sale, 235 Terms of sale and mehnorandum, 282 Underwriting on summons, 243 HEARING AND DETERMINING THE ISSUES. Affidavit for reference (long account), 31 Affidavit upon the pleadings, 31 Affidavit that trial will require decision of difficult questions of law, ■ 34 Affidavit on motion for referee in place of one deceased, 100 Affidavit on motion to set aside referee's report, etc. , for im- proprieties, 155 Affidavit of referee respecting time spent by him in the refer- ence, 164 Amendments to proposed case and exceptions, 137 Approval of undertaking by referee in action or counter claim founded upon lost negotiable instrument, 80 Certificate of referee to use on motion for an extra allowance, 110 Case and exceptions, 1S6 Consent to refer the issues, 3 Contempt, warrant of attachment, 178 Contempt, order for commitment, 176 Contempt, warrant for commitment, 177 Contempt, order to show cause, 180 Contempt, afl^davit to obtain same, 181 Contempt, order fining offender, 182 Judgment, 122 Notice of motion to refer the issues, 29 Notice of appeal to general term from order directing refer- ence, 48 Notice of trial, 61 Notice of motion for order appointing referee in place of one deceased, 100 Notice of election to end reference,^ 116 432 INDEX TO FOEMS. Page HEARING AND DETERMINING THE ISSVES— continued. Notice of entry of judgment, 120 Notice 01 exceptions, 125 Notice of proposed case and exceptions, 13T Notice of settlement of case and exceptions, 138 Oath of referee, 64 Oath of witnesses, 71 Order of reference on consent, 3 Order of reference on motion, 43 Order reviving action upon death of party, 98 Order appointing referee in place of one deceased, 101 Order by referee settling case, and directing filing and annex- ing to judgment roll, 138 Order setting aside report and vacating judgment for referee's improprieties, 155 Order to show cause why referee's report and judgment en- tered thereon be not set aside for referee's improprieties, 156 Report on dismissal of complaint for plaintiff's default and neglect to prosecute, 67 Report on dismissal of complaint for failure to state a cause of action, 68 Report on motion for judgment in plaintiff's favor on the pleadings, 69 Report for defendant on whole case dismissing complaint, 83 Report, general form of (issues of fact), 116 Report on trial of issues of law, 117 Report directing that account be taken, 117 Report in action for negligence, 118 Requests to find and rulings, 91 Stipiilation to refer the issues, 3 Stipulation to avoid a reference, 11 Stipulation fixing referee's fees, 161 Subpoena, general form, 68 Subpoena ticket, 69 Subpoena duces tecum, 59 Subpoena, proof of service, 59 Undertaking, where action or counterclaim is founded upon last negotiable instrument, 80 Undertaking, approval of same, 81 INTERLOCUTORY REFERENCES GENERALLY. Summons, 191 Minutes of tesnmony, 194 INTERLOCUTORY REFERENCES SPECIFICALLY. Order of reference to take an account, 201 Order of reference to take receiver's account, 202 INDEX TO FORMS. 4:33 Page INTEELOCUTORY REFERENCES SVHCIFICALIjY.— continued. Order of reference to report upon specific question of fact with opinion, 206 Order of reference to ascertain damages sustained by injunc- tion, . 210 Report, taking and stating account, 203 Report upon specific questions of fact, 206 Report on taking affidavits to be used on a motion, 207 Report on ascertaining damages sustained by injunction 212 IDIOT, SALES OF LANDS BELONGUNG TO. See Infant. INFANT, SALES OF LANDS BELONGING TO. Order of reference, 2S7 Report of referee, 259 LUNATIC, SALES OF LANDS BELONGING TO. See Infant. MATRIMONIAL ACTIONS. Affidavit of service of summons and complaint, 266 Affidavit of default in answering or pleading, 267 Certificate of referee at close of testimony, 270 Consent to refer issues, 284 Judgment for divorce in references to take proof, 279 Judgment for separation for husband's fault, 280 Judgment for separation for wife's fault, 281 Judgment annulling marriage, 282 Judgment, general form in references of the issues, 287 Minutes of the referee, 270 Notice of motion for reference on default, 265 Notice of confirmation of referee's report, 285 Order of reference on default, 268 Report with referee's opinion in action for divorce, 271 Report with referee's opinion in action for separation (for plaintiff), 272 Report with referee's opinion in action for separation (for defendant), 275 Report with referee's opinion to annul marriage, 276 Report general form in references of the issues, 285 MECHANICS' LIENS. Report in action to foreclose, 867 MINUTES OF TESTIMONY. See iNTEELOcnTOBT References. SUMMONS. See Interlocutoet References. SUPPLEMENTARY PROCEEDINGS. Depositions of witnesses, 809 28 4C-J: INDEX TO FORMS. Pa?e- SUPPLEMENTARY PROCEEDINGS— co?J«in««i. Notice of motion for appointment of receiver, 310 Oath of referee, 805 Order of reference to examine judgment debtors, 302 Order appointing receiver, 311 Report of referee directed -to report evidence, 308 Report of referee directed to report facts, 309 SURROGATE'S COURT. Consent to reference in proceedings for probate or revocation of probate, 324 Order of reference upon a specific question of fact, 323 Order of reference to examine accounts, 323 Order directing surrogate's assistant to take testimony in pro- ceedings for probate or revocation of probate, 325 Report upon accounting, 32t) Report in probate proceedings, 328 TOLUNTARY DISSOLUTION OF CORPORATION. Order to show cause, 334 Order dissolving corporation and appointing receiver, 337 Petition and schedules, 330 Referee's report, 335-