Billings v. Vanderbrek
New York Supreme Court
Motion to substitute réferee. The action is brought upon 'a written contract for the sale of goods and chattels. The goods were tendered in pursuance of the contract, but were not delivered, and the action was to recover the value of the goods. The case was tried before a referee, who made a report in favor of the defendant, which, on appeal, was set aside by the court, upon technical grounds, and a new trial granted.
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Motion to substitute réferee. The action is brought upon 'a written contract for the sale of goods and chattels. The goods were tendered in pursuance of the contract, but were not delivered, and the action was to recover the value of the goods. The case was tried before a referee, who made a report in favor of the defendant, which, on appeal, was set aside by the court, upon technical grounds, and a new trial granted. The affidavits on this motion, show that the plaintiff’s attorney applied to the referee to fix the time for the re-trial on the 9th of ¡November instant, and the same was fixed…
1Opinion of the Court
By the court—E. Darwin Smith, Justice.
This action was *297not referable under the statute, without the written consent ot the parties. The' affidavits show that it was referred upon such consent, and to a referee namdd by the plaintiff’s attorney. In such a case, where the parties have practically selected their own tribunal, if the court has the power, I think it ought not to exercise it, of substituting a new referee without the same consent of the parties. But aside from this consideration, I do not think there is anything in this case to warrant any change of the referee by the court. By…
2Cases cited1 opinion
- Billings v. VanderbeckNew York Supreme Court · 1857
3Cited by1 opinion
- Lennon v. SmithNew York Court of Common Pleas · 1892