Owasco Lake Cemetery v. Teller

McLennan, P. J.: The provision of fhe Constitution which it is claimed disqualified Mr. Justice Rich from holding the court and making the order, of reference in question, is as follows: “ Mo justice of the Appellate Division Shall exercise any of the powers of a justice of the Supreme Court, other than those of a justice out of court, and those pertaining to the-Appellate Division or to the hearing und- decision .¡of motions submitted by consent of counsel.” (Const, art. 6, § 2.). The same provision is contained in section 220 of the Code of Civil Procedure.. While the language employed does not leave the meaning of the provision entirely free from doubt, we are constrained to hold that it was not the intention of the framers, of the Constitution to permit- a justice of the Appellate Division to hold ^a court for the hearing of motions,'or to exercise any of. the powers, of-a justice of the Supreme Court, other than those which may be exercised by a •justice at chambers, and those pertaining to the Appellate .Court of which he is a member. Any other interpretation would enable an appellate judge to hold a term for the hearing, of. motions.and to-dispose of all business which might come before him, unless the- attorney for either party objected to the jurisdiction of- the judge or refused to consent to his acting in any case. We think it was not intended that an attorney might be called upon in open court .to consent or decline to consent that a judge might act in any particular motion noticed for a. regular term of court. We . are . also of opinion that the parties could not. by consent confer jurisdiction upon Mr. Justice Rich to hear the motion or make the .order of reference in question. (Oakley v. Aspinwall, 3 N. Y. 547.) - But assuming that the order -of reference was invalid for the reasons indicated, it does not follow that the 'report of the. referee and the" judgment entered thereon should be set aside-. . There. is no equity in the position taken by the plaintiff. A .referee satisfactory to it'was named, selected by the respective counsel. Knowing all the facts, it proceeded with the trial to- a...conclusion,.submitted its rights for decision, and, after having- a' decision rendered against it, Seeks to obtain another chance of success otherwise: than by appeal. ‘ , . • We conclude that the order of reference was á nullity because of the disqualification of the justice and that such disqualification was [453] not waived by the consent of the parties that he should act. The parties, therefore, are in the position of having gone to trial before a referee- selected by them without an order of reference having in fact been made and entered, but both parties assuming, as we must presume, in good faith that a valid order of reference had been made and entered; and the question is presented whether such defect, mistake or omission may now be corrected and the trial and judgment saved. We think sections 721, 722,723 and 724 of the Code of Civil Procedure are sufficiently broad to authorize this court to make and direct the entry of an order of reference nunc pro txmc. In the case of Bonner v. McPhail (31 Barb. 106) it was said by Lott, P. J., that while a referee must be appointed by an order of the court, and that to evidence such appointment some action of the court, shown by its records, was necessary, an order of reference made mmcpro tunc “ was proper to perfect the record in the action and to- obviate any objections that might be made by either party to the acts and decision of the referee ” who had heard and decided the case without such order having been made. In Scudder v. Snow (29 How. Pr. 95), in an opinion written by Jiidge Morgan, it was said : “As no authozity is shown for the appointment of the referee, I think his report is inoperative, and. will not sustain the judgment founded upon it. If the plaintiffs attorney had appeared before the referee and a tz’ial had been had upon the merits, I should feel bound to grant an order allowing the defendant’s attorney to draw up and enter an order of inference nun'c fro tunc in pursuance of the decision of the court at special term.” As we have seen, in this case the trial was entered upon and was continued until concluded, without objection, and final judgment Was rendered. In the case of Katt v. Germania Fire Ins. Co. (26 Hun, 429) it ■was held that tinder section 721 of the Code of Civil. Procedure the failure of a referee to be sworn would not authorize the court to set aside the judgment entered upon his report. In Eagan v. Moore (2 Civ. Proc. Rep. 300), under section 724 of the Code of Civil Procedure, it was held that the court had the power to allow the amendment' of an offer of judgment after the trial of an action nu/nc pro twic, as of the time when it was made; [454] and the court said: “An examination of section 724 of the Code ' seems to lead to a conclusion that there is no step in an action or proceeding which, if imperfectly taken,- is not. the subject' of amendment. . In Bliss v. Bliss (11 Civ. Proc. Rep. 94), which was an action for" divorce, it was “ Held, that an order was properly made upon the-coming in of the. referee’s report amending order of reference nunc pro tunc,'st> as to refer in terms the action and all its issues to such referee for hearing'and determination, and to report thereon.” The foregoing and many other cases of similar import might be cited which, as it seems to -us, authorize-, this court to supply the defect and omission alleged in this case, rather than set aside, the report of the refereé made in good faith, the result of a trial conducted with consent of all the parties, and to vacate the judgment entered upon such report. It is concluded that an order of reference should be made referring the issues to John M. Brainard, Esq., to hear, try and determine the'same, and that the same be entered as-of the 31st day of December,'1904, and that the order appealed from should be affirmed, . but without costs of this appeal. Hash', J., concurred; Williams, J., concurred in result only; Spring, J., dissented in an opinion in which Hiscook, J., concurred.