McAllister v. Case

J. F. Daly, J. — [After stating the facts as above.] Although it does not appear that the appellant here was injured by the introduction of the merely formal proof of the filing of notices of pendency of action, and the argument of the questions arising upon the non-filing of such notices by certain lienors (which questions were ultimately decided in his favor), and the argument of the question of costs as between the lienors and the owner, yet it was undoubtedly irregular and improper for the referee to receive any proofs and hear any argument after the case was closed without notice to him, and under ordinary circumstances the report would have to be set aside and the reference vacated for such irregularity ; but it appears that the appellant here had notice of the irregularity complained of and made no objection until after the referee rendered his decision. This is a waiver of objection. After he was apprised of the proceedings of the referee, if he disapproved of them he should have objected. “He ought not to be permitted, after having lain by and taken the chance of a favorable award, to object when he finds the award against him” (Fudickar v. Guardian Mut. Life Ins. Co., 62 N. Y. 392-405). In the case cited the parties had agreed to arbitrate, and after the case had been closed the arbitrator wrote to the defendant for a statement of the plaintiff’s account with them and their objections to certain of his charges. The statement was sent, and the arbitrator showed it to the plaintiff, who claimed the right to answer it; the arbitrator told him he might do so if he concluded to use it, but that he thought then he would ignore it. Plaintiff assented-, and the arbitrator subsequently advised him that he should not regard it, and, as he testifies, “ threw it out of consideration utterly and ignored it.” The court said that the letter of the arbitrator did not call for the defendants’ books or a transcript from them, but for their answer or claim to certain credits or charges not appearing on the books, and thought it sufficient ground for setting aside the award, saying that “ any violation of natural justice by an arbitrator, such as receiving material evidence from one of the parties [388] without the knowledge or consent of the other, should be condemned,” but, in view of the fact that the plaintiff was apprised of it and made no objection until after the decision against him, he was not entitled to relief: using the language quoted above. The same rule was applied in a case where the referee made a report in favor of a party whose counsel was referee in an action (pending at the same time with that case), in which the first named referee was counsel. It was held that where each of two attorneys in different actions has the cause of the other in his hands to decide as referee, a due regard for judicial propriety and for the pure administration of justice requires that, upon the application of the opposing party in either action, made in due season and under'circumstances not amounting to a waiver, the court should vacate the reference and set aside the report if one has been made; but that the objection might be waived; and inasmuch as the party making such application knew of the facts some time prior to the decision of the referee in his case, he must be refused relief; the court saying that a party knowing the objection had no right to lie by after permitting the reference to proceed and taking the chance of success (Carroll v. Lufkins, 29 Hun 17, Gen. T. Fourth Dep’t). And in a case where a juror stopped the plaintiff, after he left the stand and was passing the jury box, and asked him some questions, and the plaintiff showed him a paper containing the advertisement which "was the subject of the action; and the defendant and his counsel failed to call the attention of the court to the circumstance, although they knew of it, but allowed the case to proceed; they waived the objection and were not entitled to a new trial on the ground of the irregularity and the misconduct of the juror, having knowingly taken the chances of a favorable verdict and “miscalculated the result” (Valiente v. Bryan, 66 How. Pr. 302, N. Y. City Ct. Gen. T.) The affidavit of Mr. Strong, counsel and attorney for the lienor, the Hopkins & Dickinson Manufacturing Company, states positively that in his ■ conversations with Mr. Hall, [389] the attorney for this appellant, and Mr. Sanborn, the attorney for the owner, he learned that Mr. Hall was informed by Mr. Sanborn of this argument between the deponent and Mr. Sanborn before the referee, “within a very few days after it occurred, and long before the report of the referee was made, so that Mr. Hall has, in effect, been waiting to see what the decision of the referee would be, before he took any action based upon the alleged irregularity of such argument.” The argument referred to embraced the questions arising upon the notices of lis pendens filed after the close of the case and also the question of costs. This allegation is not denied by Mr. Hall. In his brief on this appeal he states that the conversation took place after July 1st, the date of the report, but there is no proof of it in any paper read on the motion, and the report was not filed until July 15tli. I think therefore that the facts of this case bring it within the rule applied in the authorities cited above. The order should be affirmed, with costs. Larremore, Ch. J., and Van Hoesen, J., concurred. Order affirmed, with costs.