Dwyer v. Hoffman

Brady, J.: The learned judge in the court below denied the motion, although the sixty days allowed by section 1019 had expired, upon the ground that the delay was caused by the defendant’s propositions and attempts to accomplish a settlement, and it would be unjust to allow him to take advantage of his own acts ; that such a $tate of facts withdrew the omission to take up or file the report from the operation of the statute. The case presented was not within its spirit. This view was a very just one and should be carried out notwithstanding the record shows a conflict upon the question as to the cause of the delay, as suggested in the opinion of Barrett, J. The facts make the controversy analogous to that of Ballou v. Parsons (55 N. Y., 673), in which an oral agreement before the referee [362] to extend the time to make the report indefinitely was held to protect the validity and efficacy of the report though not filed in sixty days as required by section 273 of the Code of Procedure, which is similar to section 1019 of the Code of Civil Procedure. It would’ be unfair where the delay is occasioned by the unsuccessful party and for his benefit to permit him to avail himself of an advantage thus gained and his acts should be declared in effect a consent for the enlargement of the time within which the report should be made. In Little v. Lynch (99 N. Y., 112) there were no facts such as are here presented. Indeed the only incident relied upon was that the report was ready and had been offered to the attorney. I think the order should be affirmed, with ten dollars costs and disbursements. Daniels, J., concurred. Present — Brady and Daniels, JJ. Order affirmed, with ten dollars costs and disbursements.