Opinion
December Term, 1899.
Isaac N. Miller, for the appellant.
M.S. Guiterman, for the respondent.
Upon the application of the defendant an ex parte order was granted requiring the plaintiff as a non-resident to give security for costs. A motion was thereafter made by the plaintiff to vacate said order on the ground of irregularity and as against the facts. The justice holding the Special Term, on the consent of the parties, made an order of reference to take testimony and report the same to the court regarding the plaintiff's residence. The testimony was taken before the referee and finally submitted, and he not having made his report within sixty days, the plaintiff, by virtue of section 1019 of the Code of Civil Procedure, served a notice terminating the reference. Subsequently a notice of motion to confirm the report was given, and upon the hearing the report was confirmed by the justice then sitting at the Special Term — the former justice who had made the order of reference having in the meantime retired from the bench — and it is from the order thus made that this appeal is taken.
The contentions that a justice, other than the one who had originally made the order of reference, confirmed the report, and as to the papers to be used upon the motion to confirm the report, were correctly disposed of in the opinion of the court below, as was also the question as to the effect of the plaintiff's notice terminating the reference. This last is the only point which requires discussion.
The following is the opinion of the court below:
BEEKMAN, J.:
The reference ordered by Mr. Justice COHEN was purely interlocutory, and was intended to secure testimony in aid of the court upon a final determination of the motion then pending. The effect of the order was to postpone the hearing of the motion until the coming in of the referee's report, when, on the application of either party, it might be brought on for a hearing on the original papers and the testimony adduced before the referee. The motion, therefore, was not submitted to Mr. Justice COHEN, nor has it been heard on the merits by him, so that the contention that it fell when he retired from the bench because then undecided is without any support whatever. The practice of the defendant's attorney, in bringing the motion on at Special Term, was correct, and the whole matter is now properly before me for determination. The point is made that the reference was terminated on notice after the lapse of sixty days, and before the referee's report was filed. Without passing upon the right of a party to do so in the case of such a reference as this, it appears from the affidavit of the referee that there was an arrangement between himself and counsel that he might have all the time he desired to make his report. While this seems to be somewhat in dispute, I have determined to accept his version of the matter. Such an understanding as this operated as a waiver of the time limit. ( Ballou v. Parsons, 55 N.Y. 673.) Upon the merits, I am of the opinion that the plaintiff was a non-resident of the State when the order requiring him to give security for costs was made, and that the motion to vacate that order should be denied. Settle order on notice.
The affidavit of the defendant's attorney, as well as that of the referee, shows that at the close of the testimony the counsel for the parties stipulated to allow the referee to have all the time he required to make his report. This is denied by the plaintiff's attorney; but in view of the preponderance in favor of the conclusion reached by the court below, that such an oral stipulation was made, we must take that as true. The question, therefore, presented is whether the failure to have such a stipulation in writing, as required by rule 11 of the General Rules of Practice, is fatal.
This question is not new, it having been held in Ballou et al. v. Parsons ( 55 N.Y. 673), as stated in the syllabus: "When an oral agreement is made in open court upon trial before a referee upon final submission, extending indefinitely the time within which the report may be made and delivered, the reference cannot be terminated in the manner provided by section 273 of the Code. It seems that in such case the proper practice, in order to terminate the extension, is to serve notice upon the opposite party and the referee; that unless the report is made within a specified reasonable time, the reference will be deemed ended." This is direct authority, for the reason that section 273 in the old Code is re-enacted in section 1019 of the present Code of Civil Procedure.
We think, therefore, that the disposition made of the motion by the court below was right and that the order appealed from should be affirmed, with costs.
BARRETT, RUMSEY and PATTERSON, JJ., concurred; VAN BRUNT, P.J., concurred upon last ground.
Order affirmed, with costs.