Preston v. . Morrow

Allen, J. These actions could not have been originally referred without the consent of the parties, for the reason that the trials thereof did not require the examination of a long account. (Code, § 271.) By consenting to refer to a particular referee, named in the consent and in the order, the parties did not waive the right to a trial either bythe court or by a jury if,- for any reason, the reference agreed upon should fall through. Hpon the death,, removal or refusal of the referee to act, the actions were again in the court for trial, as prescribed by law, as if no reference had been consented to. A waiver of a right for a special purpose or upon a stipulated condition, is not a general waiver of such right when such purpose has either been accomplished or failed, or the conditions have ceased to exist or are not complied with. The reasons why, if the power existed in the court to hold the party to his consent to refer to a person other than that agreed upon, it should not be exercised, are well stated in Haner v. Bliss (7 How., 246), Billings v. Vanderbrek 15 id., 295); Sharp v. The Mayor, etc., of New York (31 Barb., 579). If the court had. the power to order a new reference, the first having fallen through, we cannot review the exercise of the discretion. We are of opinion, however, that the referee first agreed-to and appointed not acting, and the reference therefore failing, the court had not the power to order a new reference- without the consent of the parties. The right to object to a reference was not waived by a consent upon conditions not complied with. (Turner v. Burrows, 1 Hill, 627; Weeks v. Lyon, 18 Barb., 530; Reynolds v. Douglass, 12 Peters, 497.) The parties consented to a par *454 ticular referee, and not to any referee the court might appoint. • Orders of the General Term and Special Term must he reversed and the motions denied. All concur, except Hiller, J., dissenting. Orders reversed, and ordered accordingly.