Leese v. Schermerhorn
New York Supreme Court
This cause having been referred to a sole referee, he, on the 26th of July last, reported in favor of the Plaintiff, without serving a copy of the report; the Plaintiff’s attorney on the 2d day of August perfected a judgment upon the report. The Defendant moved to set aside the judgment for irregularity.
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This cause having been referred to a sole referee, he, on the 26th of July last, reported in favor of the Plaintiff, without serving a copy of the report; the Plaintiff’s attorney on the 2d day of August perfected a judgment upon the report. The Defendant moved to set aside the judgment for irregularity. The plaintiff resisted the motion, by showing that after the service of the papers for this motion, the Defendant’s attorney accepted a copy of the report, and a stipulation giving him twenty days to make case, and verbally agreed that this motion should not be made.
1Opinion of the Court
Harris, Justice.
In perfecting judgment upon the report of the referee, without serving a copy of the report upon the Defendant’s attorney, the plaintiff is conceded to have been irregular, but he claims that the irregularity is cured by the waiver of the Defendant’s attorney, notwithstanding the rule which requires every agreement between parties to a suit, or their attorneys, to be in writing, in order to make it binding ; a party should not be allowed to avail himself of this objection, where the other party had been led to do or omit anything in the cause,, in consequence of a parol…
2Cited by2 opinions
- Price v. Lehigh Val. R.U.S. Circuit Court for the District of Northern New York · 1895
- Lauck v. Gorman, New York County Courts1914