Eldred v. Eames

Martin, J.: This is an appeal from an order denying a motion for a new trial and confirming tbe report of a referee, and from tbe judgment entered herein. Tbe reference was of a claim against tbe estate of a deceased person. Tbe claim was for a balance alleged to be due tbe plaintiff for money lent, paid out and advanced to and for tbe defendant’s testator, and interest tbereon. On tbe trial tbe plaintiff was permitted to withdraw one item of bis claim in wbicli be charged tbe testator’s estate with $37,998.98, and credited it with $4,506.96. To this tbe defendant objected and excepted to the ruling of tbe referee permitting it. Tbe referee by bis report found that tbe defendant, as executrix, was indebted to tbe plaintiff in tbe sum of $5,032.30 on said claim, and that tbe plaintiff was entitled to judgment against bet as su ch executrix for that amount. Tbe defendant claims that in this tbe referee erred: (1.) Because tbe evidence was that tbe money found by him to have been paid and advanced to and for the defendant’s testator was not, in fact, for him, but for some syndicate or company, and (2.) If for him, a settlement had been bad between tbe parties, whereby tbe jilaintiff’s demand against the estate of tbe testator bad been discharged. ¥e think tbe evidence in this case was sufficient to justify tbe conclusion [255] of the learned referee, that the items allowed by him were loaned, paid and advanced to and for the defendant’s testator and not to any syndicate or company. It was at least a question of fact, and with his determination of it we are satisfied. There was no evidence of any settlement or accord and satisfaction between the parties, which would have justified the referee in finding or holding that the plaintiff’s claim against the estate of the defendant’s testator was discharged or satisfied. The defendant contends that it was error for the referee to allow the plaintiff to amend his claim by withdrawing a portion thereof, which included a credit as well as an item of indebtedness. The statute by which such a reference is authorized, provides that the referee shall have the same powers as if the reference had been made in an action in which the court might by law direct a reference. (3 R. S. [7th ed.], 2300, § 37.) In an action a referee would have power to allow such an amendment. (Price v. Brown, 98 N. Y., 388, 393; Williams v. Davis, 7 Civil Pro. R., 283, 286.) ¥e think the referee had power to permit the plaintiff to withdraw this portion of his claim, and that he committed no error in allowing him to do so. (Case v. Pharis, 106 N. Y., 114.) But it is said that when the statute was passed under which this proceeding was instituted, a referee appointed in an action possessed no power to allow amendments, and hence, that the referee in this proceeding possessed no such power. This claim is based upon the theory that the powers conferred upon such a referee are only such as were possessed by a referee in an action in 1828, when the statute was passed. In effect the claim is, that the statute must be construed as though it read, “ a referee shall have the same powers as if the reference had been made in an action at the time of the passage of this act.” Such is not, however, the language of the statute, nor do we think such to be a proper construction of it. By this statute a referee appointed under it is given the same powers as if he had been appointed in an action. The time to which this statute relates is the time when the appointment is made, and not the time when the statute was passed. ¥e think that a proper construction of this statute leads to the conclusion that a referee appointed under it possesses the same powers, is entitled to the same compensation and subject to the same control as though he had, at the time of his [256] appointment, been appointed a referee in an action instead of a referee under this statute. The claim of the defendant that the referee erred in allowing the plaintiff interest cannot be sustained. The rule must be considered,, as established in this State, that upon money advanced by one person for. the use of another, interest is recoverable from the time of the advance, in the absence of any express agreement upon the subject, unless it appears from the circumstances under which, and the purposes for which, the advance is made, and the relations existing between the parties, either that it was their intention that interest should not be paid or that it would be inequitable to exact it. (Gillet v. Van Rensselaer, 15 N. Y., 399; Smith v. Bodine, 74 id., 30, 37.) There is nothing in this ease to show that it was not intended that interest should be paid. So far as the evidence goes it tends to show that it was intended that interest should be paid. Nor is there anything inequitable in requiring the defendant to pay it. From these considerations it follows that the judgment and order appealed from should be affirmed, with costs. Hardin, P. J.: By section 37, 2 Revised Statutes (Edm. ed.), page 91, it is provided that referees, in proceedings like the one before us, “shall have the same powers ” as if the reference had been in an action. By section 1018 of the Code of Civil Procedure it is declared that referees exercise “ the same power as the court to allow amendments to the summons or to the pleadings.” Both statutes must be considered and an interpretation given in accord with the spirit and letter of each. Where a reference is had under the statute the claim and stipulation stand in the place and stead of and for the pleadings. Such a reference is a special proceeding. (Bucklin v. Chapin, 1 Lans., 450; Hatch v. Stewart, 42 Hun, 164.) These views lead me-to concur in the result reached in the opinion of Martin, J., sustaining the power exercised by the referee in allowing the amendment.