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pointed herein [except upon further stipulation of the parties hereto.25]
[Signatures of attorneys.]>S [Date.] [Or signatures of parties, with acknowledg
ment or proof; see Form 822, p. 1176.]
FORMS Nos. 1832-1835.— STATEMENTS SUITABLE TO INSERT IN FORE
FORM No. 1832. To secure substitution in case of death or other incapacity. In case said referee fails to serve, for any cause, another referee shall be appointed by the court on motion of either party.
FORM No. 1833. Power to enter judgment where statute does not give it. And that upon filing his report judgment may be entered by the clerk in conformity therewith without further notice.27
FORM No. 1834.
FORM No. 1835.
[Commence:] Pursuant to the foregoing order [or, an order herein entered the day of ,19 ], it is hereby stipulated [continuing as in Form 1831, from the beginning, ercept that if the referee is not agreed on, say: a referee to be appointed by the court, and add at end any further element of the condition. as for instance:] the trial to proceed on days' notice.
25 Otherwise the court must appoint another referee. $ 1011. Resigning after having entered upon the refer ence is a refusal within the section. Brooklyn Heights R. R. Co. v. Brook lyn City R. R. Co., 105 App. Div. 88, 93 N. Y. Supp. 849.
26 By N. Y. Code Civ. Pro.. $ 1011, signature by attorney is required. If the attorney desires the sanction of his client's signature to appear in the
proceeding itself, the client's signature may be added.
27 This is sufficient authority. Bowie r. Borland. 68 Cal. 233, 9 Pac. Rep. 79; s. P., Heckers . Fowler, 2 Wall. 123, 127. But is not necessary where, as in New York, the statute so provides.
2 8 Not needed in New York. See Vol. I, p. 211.
FORM No. 1836.
Order referring cause, by consent.29 [Name of] Court (or if a court order80] At a Special Term [etc.,
as in Form 820, p. 1174]. [Title of cause.]
On reading and filing the annexed consent (or where the consent is given at the trial: This cause having regularly come on for trial, and the parties appearing and having duly consented to have the same referred 32 now, on motion of A. T., for plaintiff [or, defendant]:
ORDERED, that * this cause and the issues of law and fact herein are hereby referred to 33 of [counselor at law], as sole referee (or to — names of three — as referees], to hear and determine [add special clauses, if any, as in stipulation].
[Authentication by clerk, or as in Form 818, p. 1173.]
1837. Notice of trial before referee.
1812. Order reopening hearing, after
final submission, to take fur
ther testimony. 1843. Notice to terminate reference
for delay to report. 1844. Affidavit upon motion to vacate
proceedings after notice to terminate.
2 An order is necessary. But where the case, being reached for trial, is referred by consent, the entry of the direction in the clerk's minutes is sufficient without a formal order signed by the judge. Gerity v. Seeger, etc., Co., 163 N. Y. 119. A judge's indorsement on the calendar for the term is not enough. Bonner v. McPhail, 31 Barb. 106.
30 It is the better practice in all cases to take an order of court, so as to put beyond doubt the power of the referee to punish for contempt. See N. Y. Code Civ. Pro., § 2272. If the referee is not named by the stipulation, the clerk cannot, under the New York statute, enter the order without direction of court or judge.
31 Only the parties appearing need consent. Schwarz v. Livingston, 18 N. Y. Supp. 879.
32 No written consent is necessary. Lennon v. Smith, 18 N. Y. Supp. 213, 22 Civ. Pro. Rep. 22.
33 An order on consent which names the referee cannot refer the cause to any other than the referee named in the consent. Any substitution must be by consent also. Haner v. Bliss, 7 How. Pr. 246; Billings v. Vanderbreck, 15 id. 295.
34 The referee should be given a certified copy of the order before taking any step in the reference. Gerity v. Seeger, etc., Co., 163 N. Y. 119.
FORM No. 1837.
Notice of trial before referee. [Title of court and cause.]
Please take notice, that this cause will be brought to trial before R. F., Esq., the referee, at [his office], No. , in the city of , on the day of , 19, at o'clock in the noon. [Date.]
[Signature and office address of], [Address] To
FORM No. 1838.
Oath of referee,35 [Title of court and cause.] [Venue.]
R. F., the referee appointed herein, by order entered the day of , 19, being duly sworn, says, that he will faithfully and fairly * try the issues [if any special questions besides the issues arising on the pleadings are referred, add: and f determine the questions referred to him] and make a just and true report according to the best of his understanding. [J urat.]
[Signature.] FORM No. 1839.
Entry as to oath, in referee's minutes. [Oath annexed.] The referee announced that he had taken the usual oath, before M. N. (notary public).
[Waiver of oath.36] All the parties whose interests could be affected by the result of this reference being of age and present in person or by attorney, they expressly waived the referee's oath.
35 At common law, that is to say, the referee enter the waiver in minin the absence of statute or rule of utes. Browning v. Marvin, 5 Abb. court, an oath is not required. Thomp. N. C. 285 (holding that even attend. son v. Smith, 2 Bond, 320. It is re- ing and refusing for another reason to quired by N. Y. Code Civ. Pro., in go on, does not waive the objection references under sections 1011-1016, unless a waiver is so entered). which requirement, however, has been T he oath should not be taken before held not to apply to a reference to an attorney for a party. Katt v. Ger. compute amount due on failure to an mania F. Ins. Co., 26 Hun, 429. See, swer. McGowan v. Newman, 4 Abb. also, Vol. I, p. 12. N. C. 80. Contra, Exchange F. Ins. The presumption is that the referee Co. v. Early, 4 Abb. N. C. 78.
took the necessary oath, if the records A party sui juris by appearing and are silent on the matter. Hatfield e. going on with the reference, without Malcolm, 71 Hun, 51, 24 N. Y. Supp. objection, waives the omission. New 596. comb v. Wood, 97 U. S. 581; Nason 36 See Browning v. Marvin, 5 Abb.
. Ludington, 8 Daly, 149, aff'g 55 N. C. 285; Nason v. Ludington, 8 How. Pr. 342. But it is the better Daly, 149. practice in cases of waiver to have
FORM No. 1840. Stipulaiion as to compensation, in referee's minutes. It is stipulated between the parties hereto that the referee's compensation shall be at the rate of [name the sum].37
FORM No. 1841.
Requests to find. [As in Form 1747.]
FORM No. 1842. Order re-opening cause after submission, so as to take further testimony.88
[Adapt from Form 1745.]
FORM No. 1843. Notice to terminate reference for delay to report.39 [Title of court and cause.]
Please take notice, that the [defendant] in this action elects to end the reference therein.40 [Date.]
[Signature and office address of],
Attorney for [Address to and serve upon adverse attorney and referee.]
37 A stipulation that the referee “ may charge such fees as he deeins proper,” or “may charge and be paid a reasonable compensation for his services," fails to fix the rate of compensation, and is ineffective. Griggs v. Day, 135 N. Y, 469; N. Y. Mut. Sav., etc., Assoc. v. Westch. F. Ins. Co., 98 App. Div. 285, 90 N. Y. Supp. 710.
The wording of the stipulation will control, in the absence of proof by affidavit as to a different understanding of the parties. See Wolff v. Horn, 9 Misc. 100, 29 N. Y. Supp. 75.
Request by referee that parties consent to fix his fees at a sum larger than statutory rate held ground for his removal. Smith v. Dunn, 94 App. Div. 429, 88 N. Y. Supp. 58.
38 The referee has discretionary power so to do before report filed or delivered. Wright v. Reusens, 133 N. Y. 298. Even though he has given an opinion, but has not made his report. Decker v. O'Brien, 13 Misc. 94, 34 N. Y. Supp. 81. And in a case where excusable mistake is shown for not offering testimony, it is an abuse
of discretion to deny motion. Gott. leibt. Dole, 109 App. Div. 583, 96 N. Y. Supp. 329. Cannot be done after report filed, nor can Special Term send back the report. McCready v. Farmers' Loan & T. Co., 79 Hun, 241, 29 N. Y. Supp. 361..
3 9 Under N. Y. Code Civ. Pro., § 1019. Does not apply to references in special proceedings. Doyle v. Mayor, 26 Misc. 61, 56 N. Y. Supp. 441.
Sustained by Gregory 0. Cryder, 10 Abb. Pr. (N. S.) 289. See, also, Little v. Lynch, 99 N. Y. 112; rev'g 34 Hun, 396; Dwyer v. Hoffman, 39 Hun, 360.
An oral agreement of the attorneys, if made before the referee at a hearing and entered in the referee's minutes, is effective to extend the time. Sproull v. Star Co., 45 App. Div. 575, 61 N. Y. Supp. 404, 7 Anno. Cas. 172. Otherwise not. Patterson v. Knapp, 83 Hun, 492, 32 N. Y. Supp. 32, 24 Civ. Pro. Rep. 251.
40 Where a referee's report is invalid because failing to comply with
FORM No. 1844. Affidavit to move to vacate proceedings taken after notice terminating
reference.41 [Title of court and action.] [Venue.]
T. Z., being duly sworn, says: 1 I. That he is the attorney of the defendant herein.
II. That the issues in this action were by an order duly entered the day of , 19 , referred to R. F., Esq., of , as sole referee, to hear and determine, and that thereupon the trial of said issues proceeded before him from time to time until the day of , 19 , and on that day the said action was finally submitted to him.”
III. That up to and including the day of last, no report had been delivered or filed by the said referee upon the issues so referred to him, and that on the day last aforesaid deponent served on the plaintiff's attorney (and on said referee] a notice, of which the annexed is a copy, as appears by the annexed affidavit of C. D.
[State what further proceedings have been taken, if any, as thus:] IV. That on the day of last, plaintiff filed in the office of the clerk of this court a paper purporting to be a copy of an alleged report of the said referee, bearing date the
day of , 1943 V. That the time limited by law for the making and delivery of the said report has not been extended or enlarged by any order of the court [made prior to ], nor by any stipulation of the parties or their attorneys.
[If order to show cause is asked, state as on p. 1172.] [Date.]
the tes stating of law, thespiration of
the requirements of $ 1022, as to separately stating the facts found and the conclusions of law, the unsuccess. ful party may, after the expiration of the sixty days, serve the notice of termination. Lederer v. Lederer, 108 App: Div. 228, 95 N. Y. Supp. 623.
41 Sustained in Gregory 0. Cryder, 10 Abb. Pr. (N. S.) 289.
42 As to oral extensions, see Ballou v. Parsons, 55 N. Y. 673; aff'g 67 Barb. 19.
43 If the report is invalid for noncompliance with statutory require. ments, the reference must be vacated upon notice served of election to terminate. Lederer 0. Lederer, 108 App. Div. 228, 95 N. Y. Supp. 623.