Zakkai v. David

Per Curiam. The order appealed from denying the motion to terminate the reference before the private Referee and to refer the accounting between the parties to an Official Referee to take and state the account should be unanimously reversed and the motion granted, without costs. Where, as here, a decision is to be made by Special Term following a reference to hear and report, a full record of the proceedings conducted by the Referee including the testimony and the exhibits is required to be before the court, as otherwise it will be unable to determine whether or not the evidence sustains the report. (Aron v. Aron, 280 N. Y. 328, 330; Matter of Tillman, 232 App. Div. 575, 576 ; Matter of Reigrod v. Kirk, 246 App. Div. 729.) Since neither the Referee nor the court is empowered to order the parties to furnish the minutes (Keystone Type Foundry v. City of New York, 213 App. Div. 86, 87), in the circumstances of this case, the private reference should be terminated. The completion of the accounting is referred to an Official Referee who is to take and state the account in accordance with the provisions of the interlocutory judgment. The defendants, upon the argument of this appeal, having consented that the testimony heretofore taken before the private Referee may be received by an Official Referee with the same force and effect as if the same were actually given before him, the transcript of such testimony is to be filed with the Official Referee, subject, however, to any motion to strike out such portions as may be deemed inadmissible. The allowance of fees for the private Referee and payment therefor is to be held in abeyance until after the coming in of the Official Referee’s report. Settle order. Peek, P. J., Cohn, Callahan, Bastow and Botein, JJ., concur. Order unanimously reversed and the motion granted, without costs. Settle order on notice.