Parkhurst v. Berdell

Miller, J.

The stipulation between the attorneys provided that the action be ’referred to William M. Pritchard to hear and determine the same on the evidence already taken before the former referee and upon no other testimony whatever. It was also stipulated that the action be summed up before the. referee on a day to be fixed by him prior to the 15th day of April, proximo, and the order of reference was entered upon filing the stipulation.

I think that by the terms of the stipulation it was intended that the day fixed for summing up should be prior to the 15th day of April, proximo.

As, however, no provision was made that a failure to fix a day should vacate the order, and the reference was not conditional upon that being done, such failure does not necessarily, of itself, furnish any valid ground for setting the order aside, if sufficient reasons otherwise exist to warrant such an order.' It appears, from the papers in the case, that on the 31st of March the attorney for the plaintiff- called -upon the referee to appoint a time and place to hear the summing up of said ac *147 tion pursuant to the stipulation, and that the referee then stated to him that it would be impossible for him to fix a day for that purpose prior to the 15th of April, and on the following morning wrote to the attorney a letter to that effect, and asked to be excused from serving. The referee’s letter of April 14 to the defendant’s attorney shows that he told the plaintiff’s attorney that if the day fixed had been the 15th of May, he might have undertaken the reference; that the attorney left him undecided, and to consult with his brother whether he would postpone the hearing or discharge the referee, and the next day he had received a note from the attorney requesting him to decline the reference unless he could hear the argument before the 15th of April, and he accordingly wrote a note as already stated. The referee declined because he was requested to do so, and under these circumstances the question arises whether the court was authorized to vacate the order of reference. As the referee was thus objected to and requested not to act, it was but natural that he should desire tó be relieved as a matter of delicacy. How far the court should regard such a declination, "however, in disposing of the motion was a matter for consideration. Thé inability of the referee to name a day within the time named prevented the parties from having the case summed up as the stipulation provided, and we think entitled the party to apply to the court to vacate the order of reference and the stipulation. Although the request of the referee should not? have controlled, yet, under the circumstances, it was for the judge to say whether the order should not be vacated. "This was to some extent discretionary, and it is not clear that such discretion was abused or improperly exercised. While it may be doubted whether the decision of the case was expedited by such a course, and it is very apparent that by means thereof large expenses may be incurred and great delay, yet upon the whole we think there was authority to vacate the order and the order of the General Term should be affirmed, with costs.

All concur.

Order affirmed.