Holmes v. Slocum
New York Supreme Court
Motion to set aside report of referee for irregularity. The action was brought to recover on an account and was referred by stipulation. The defendant noticed the cause for hearing before the referee for the 10th of July, and it was postponed by stipulation to the 21st of July. On the latter day the plaintiff served an order staying proceedings which the defendant disregarded. The plaintiff did not attend before the referee to try the cause.
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Motion to set aside report of referee for irregularity. The action was brought to recover on an account and was referred by stipulation. The defendant noticed the cause for hearing before the referee for the 10th of July, and it was postponed by stipulation to the 21st of July. On the latter day the plaintiff served an order staying proceedings which the defendant disregarded. The plaintiff did not attend before the referee to try the cause. The defendant appeared and the referee reported “ that the defendant is entitled to judgment of a dismissal of the complaint.”
1Opinion of the Court
Johnson, Justice.
The affidavits do not show that the report of the referee has been filed, nor that any attempt has been made to enter any judgment upon it or to use it in any way to affect the plaintiff’s right to proceed with his cause. It is clear that this is no report upon which any judgment could be entered as a matter of course.
The report of the referee upon the whole issue stands as the .decision of the court and judgment may be entered thereon in the same manner as if the action had been tried by the court (Code, § 272; Rule 24). This is no report upon the whole issue or any part of…
2Cases cited1 opinion
- Ex parte Sheldon v. Erie C. P.New York Supreme Court · 1835
3Cited by1 opinion
- Mathews v. JonesNew York Court of Common Pleas · 1852