Thiesselin v. Rossett

By the Court—Brady, J. In addition to what was said by Judge Cabdozo', at Special Term, when the order was made to which this' appeal relates,, it may be said that if the referee were not granted his “ own time ” t© make and deliver his report, the defendant took no step indicating an intention to disaffirm the right of the referee to make and deliver his report, after the expiration of the period to which the- defendant admits the time to have been extended. _ The refusal to enlarge the time on application is not such an affirmative act. The party intending to render the reference useless must do some act thereto on the cause as already suggested. (Mantles v. Wyle, 26 How Pr. Rep., 409.) It sufficiently appears from the conduct of the defendant’s attorney in asking an adjournment of the taxation of costs, that no act disclaiming the reference was done or intended, and it would be unjust to allow the objection to prevail against the vitality of the report. The right to make the objection was, under the circumstances, waived; as it might be (Mantles v. Wyle, supra.; Leitch v. Brotherson, 25 How. Pr. Rep., 407), and the order made at Special Term should be affirmed with ten dollars costs.