Baird v. Mayor, Aldermen & Commonalty

Andrews, J.

We think this order should be affirmed. The question whether there were any relations between the referee and the plaintiff, or his assignor, which rendered it improper for the referee to hear and decide the case, and called upon the court to vacate the order of reference was addressed to the discretion of the court below, and its decision is not reviewable here. We may say, however, in passing, that, in our judgment, there is not the slightest ground for the motion in this aspect. The other ground, upon which the motion to vacate the order of reference was made, viz.: that the cause was not referable, and that the court had no power or jurisdiction to grant the order, was properly overruled, for the reason that the defendant, by not appealing from the order and by proceeding with the trial of the reference, without objection and without raising any question as to the power or jurisdiction of the referee to try the case, or claiming that it was entitled to a jury trial, must be deemed to have acquiesced in this mode of trial, and waived any objection to the order of reference. If the order of reference was void, the defendant had a remedy by appeal, or it could have refused to appear on the reference, and, in that case, it would not have been bound by the judgment. But it took neither of these courses. It did not appeal from the order, but, on the contrary, availed itself of the order. It occupied the attention of the referee from time to time, during a period of two years and a-half, in submitting the evidence in its behalf, claiming, at the commencement of the trial, the affirmative of the issues on the pleadings, and the right to open and close the case, which the referee accorded. The talcing of the plaintiff’s evidence occupied another year. The testimony taken in the case, besides the exhibits, fills 1,500 printed pages.

The Constitution (§ 2, art. 1) secures the right to a jury trial in all cases where, before its adoption, this mode of *386 trial was used. But a party may waive a constitutional right, designed for his benefit, as he may a right acquired in any other way. This has been frequently adjudicated.

(People v. Murray, 5 Hill, 468 ;

Baker v. Braman, 6 id., 47;

Embury v. Conner, 3 Comst., 511.)

The constitutional right, in civil cases, to a jury trial, is a private, individual right, and is no more sacred than other rights secured by constitutional guaranty, and I perceive no reason why it may not be waived in any mode, or that a waiver may not be adjudged upon any evidence which would be sufficient to constitute a waiver of rights in other cases. The clause in the Constitution, that the right to a jury trial in civil cases may be waived, in the manner to be prescribed by law, has not been regarded as precluding courts from holding parties to have waived by their conduct or silence, the right to a jury trial, upon general principles of law applicable to the subject, although the case is not provided for by any-statute.

(Greason v. Keteltas, 17 N. Y., 491 ;

Barlow v. Scott, 24 id., 40;

West Point Iron Co.

v. Reymert, 45 id., 705.) In this case, the defendant permitted the trial to proceed, involving great expense to the plaintiff. It did not avail itself of the ordinary remedy by appeal to correct the alleged error of the court in granting the order, and, after years of delay, it, for the first time, questions its validity by motion to vacate it.

We think the defendant by its conduct and If4 ches, under the circumstances, must be deemed to have consented to the mode of trial by reference, and that it cannot now raise the objection that the order of reference was unauthorized.

The order should be affirmed.

All concur except Miller and Earl, JJ., absent.

Order affirmed.