Lampman v. Smith

Lawrence, J. No notice, under section 1019 of the Code of Civil Procedure, was given by either of the parties to the adverse party of an election to end the reference. The case of Little v. Lynch, 99 N. Y. 112, 1 N. E. Rep. 312, and the case of Phipps v. Carman, 84 N. Y. 650, therefore, throw no light upon the question presented by this motion. The referee did not lose jurisdiction of the action, and, notwithstanding the great delay which intervened between the final submission of the cause and the delivery of the referee’s report, I am constrained to say that the proceedings in the case have not been irregular. Nor is the defendant entitled to relief under section 572 of the Code of Civil Procedure, as amended in 1886, because there is no evidence of collusion, nor was there any neglect to enter judgment within the time prescribed by that section, or in the issuing of the execution against the person of the defendant. Motion denied, with costs, and with leave to renew on further affidavits, if so advised.