Gianna v. Jaeger

In an action for judgment declaring that plaintiffs have an easement by prescription to use a portion of defendant’s real property as part of a driveway for ingress and egress of automobiles with respect to the garages at the rear of plaintiff’s adjoining real property, for an injunction and other incidental relief, defendant appeals from a judgment in favor of plaintiffs and from an order reopening the ease for further proof and from an order denying her motion to strike the case from the calendar. Judgment reversed on the law and the facts, and new trial granted, with costs to abide the event. Appeals from the orders dismissed as academic, without costs. Under all the circumstances disclosed in the record the interests of justice require a new trial. Wenzel, Acting P. J., MaeCrate, Schmidt and Murphy, JJ., concur; Beldock, J., dissents and votes to modify the judgment by granting relief in accordance with the Official Referee’s original decision of December 24, 1952, to wit, granting plaintiffs an easement to the extent of fourteen and one half inches from the property line. In my opinion, the Official Referee was without power to reopen the case for the taking of further proof and to make a decision different from his original decision. Once a decision is made by an Official Referee, he does not thereafter have the power to change it so as to affect the substantial rights of the parties. (McCready v. Farmers’ Loan & Trust Co., 79 Hun 241; Hydraulic Power Co. v. Pettebone-Cataract Paper Co., 194 App. Div. 819; Mastrobuono v. Lange, 241 App. Div. 770.) In addition, the original decision of the Official Referee is supported by the evidence.