McAllister v. Case
New York Court of Common Pleas
Appeal from an order of this court denying a motion to vacate and set aside an order of reference and the referee’s report. The action was brought to foreclose a mechanic’s lien, and was referred to a referee.
Read the full summary
Appeal from an order of this court denying a motion to vacate and set aside an order of reference and the referee’s report. The action was brought to foreclose a mechanic’s lien, and was referred to a referee. A motion to vacate and set aside the order of reference and the referee’s report was made by Morris, one of the defendants, appellant, on the ground of irregular and improper conduct of the referee, in receiving evidence and hearing counsel for some of the parties, after the case was closed, and in the absence of and without notice to the appellant. The action to foreclose the lien was…
1Opinion of the Court
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,…
2Cases cited2 opinions
- Fudickar v. . Guardian Mutual Life Ins. Co.New York Court of Appeals · 1875
- Valiente v. BryanCity of New York Municipal Court · 1883