Catlin v. Adirondack Company

The reversal of a judgment entered upon the report of a referee and the granting of a new trial does not vacate the order of reference; and the new trial must be had before the same referee, unless otherwise specially provided.

Appeal from order of the General Term of the Supreme Court, in the first judicial department, affirming an order of Special Term denying a motion to set aside a judgment entered upon the report of a referee. (Eeported below, 19 Hun, 389.) The action was referred by stipulation. It was once tried and judgment rendered in favor of plaintiff; the judgment was reversed on appeal and a new trial granted. Defendant noticed the case for re-trial before the same referee, and the plaintiff not appearing, the referee dismissed the complaint. The motion was based on the ground that the 'powers of the referee were exhausted on filing his report on the first trial, and that as the case was only referrable by consent, plaintiff was entitled to a second trial before a jury. All power and jurisdiction of a referee terminate with the filing of his report. (Sherman v. Justice, 22 How. 241; Niles v. Price, 23 id. 473; Coope v. Bowles, 42 Barb. 95.) When a referee has once filed his report, he isfunctrus officio, and cannot again act, even to correct a clerical error in his report, without a new order from the court. (Niles v. Price, 23 How. 473; Trufant v. Merrill, 37 id. 531; Richardson v. Ward, 13 Beavan, 110.) Plaintiffs had a right to a trial by jury on the second trial, and could not be dejuived of that right without their consent. (Sharp v. Mayor, 31 Barb. 579.) Had the case .been one which the court could refer without plaintiffs’ consent, they had a right to a new referee on the second trial, and could not be deprived of that right without their consent. (Schermerhorn v. Allen, 13 How. 82; Sharp v. Mayor, 31 Barb. 579.) . The order appointing the referee in this case having been entered upon the stipulation of the parties, a mere reversal by the General Term of the judgment entered upon his report would not, without a clause in the order to that effect, operate either to vacate or set it aside. (Devlin v. Mayor, etc., 54 How. 11, 22, n.; 67 N. Y. 590; Billings v. Vanderbeck, 15 How. 294; Kiersted v. Orange, etc., R. R., 54 id. 29, 46, n.; White v. Smith, 1 Lans. 469; Schermerhorn v. Van Allen, 13 How. 82; Sharp v. Mayor, etc., 31 Barb. 579, 589; Murphy v. Winchester, 35 id. 616, 620; Code of Civil Proc., § 1011; Laws 1879, p. 612; id., p. 619, '§ 2; Stark v. Dinehart, 40 N. Y. 342.)