Lewin v. Abrams

O’Malley, J. An examination under section 16 of the Debtor and Creditor Law is, by its terms, restricted to the taking of evidence and does not authorize the referee to pass upon issues. The statute [670] merely provides that the evidence adduced, after being filed in the county clerk’s office, “ may be used in evidence * * * in any action or proceeding then pending, or which may hereafter be instituted.” Any opinion of the referee “ would be extra-judicial and there is no authority vested in the judge to require it.” (Matter of Holbrook, 99 N. Y. 539, 543.) Jurisdiction otherwise lacking may not be conferred by consent, and objection on the ground of lack thereof may be raised at any time. (Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315.) The finding of the referee herein, therefore, could not be made binding as to the claims of these parties. (Bannon v. Bannon, 270 N. Y. 484.) While the court undoubtedly had general jurisdiction of the subject-matter and of the parties, mere implied consent, if such there was, for the referee to try out the validity of the claim would not justify a final and conclusive order upon such issue. In Bannon v. Bannon (supra) the court likewise had general juridiction of the subject-matter and of the parties. Nevertheless, it was stated that the intermediate order there entered would not be conclusive even if the order of reference was to be construed “as a tender to the parties of the same opportunity as a trial would afford, to present their formal proof upon the issue ” (p. 493). Further it was said (at p. 491): “ The test then is not the form of the decision but the nature of the proceedings in which the adjudication is made. If in such proceedings the jurisdiction of the court is limited in scope so that particular questions may be decided only provisionally or for a limited purpose, a decision in any form can be given effect only within the same limits.” Here, under section 16 of the Debtor and Creditor Law, there was to be the mere taking of testimony and the filing thereof in the county clerk’s office for further use. The order granting defendant’s motion dismissing the complaint on the ground of res adjudicata and the judgment entered thereon should be reversed, with costs, and the motion denied, with ten dollars costs. Martin, P. J., and Townley, J., concur; Glennon and Untermyer, JJ., dissent and vote for affirmance.