Scubder v. Snow
New York Supreme Court
Motion of plaintiff to set aside judgment upon the report of a referee dismissing the complaint. The affidavit showed that an order was granted at special term to refer the action, but it did not appear whether the reference was to try the issue or to take the testimony. No order of reference was entered, but the judgment roll contained an appointment of a referee signed by a judge of the court, to hear, try and determine, the. issue.
Read the full summary
Motion of plaintiff to set aside judgment upon the report of a referee dismissing the complaint. The affidavit showed that an order was granted at special term to refer the action, but it did not appear whether the reference was to try the issue or to take the testimony. No order of reference was entered, but the judgment roll contained an appointment of a referee signed by a judge of the court, to hear, try and determine, the. issue. The plaintiff did not attend before the referee pursuant to notice of trial, and thereupon, on motion of the defendant, the plaintiff’s complaint was dismissed…
1Opinion of the CourtMorgan, J.
A justice of this court has no authority to appoint a referee except at special term. As a chamber order the appointment was invalid unless it ivas authorized by the decision of the court at special term. I presume it was so authorized, and would have been valid if all order had been drawn up and entered in conformity with the decision. It is the business of counsel to see to it that the decision of the court at special term is properly incorporated into an order and duly entered with the clerk to make it effective.
Although the court may afterwards allow the order to be entered nunc pro tunc,…
2Cited by3 opinions
- Terpening v. HoltonSupreme Court of Colorado · 1886
- Owasco Lake Cemetery v. TellerAppellate Division of the Supreme Court of the State of New York · 1906
- Early Times Distillery Co. v. ZeigerNew Mexico Supreme Court · 1901