Keihen v. Shipherd
City of New York Municipal Court
At chambers. On application for an order requiring defendant to appear and proceed with his examination. Action by Thomas Keihen against J. B. Shipherd. An order in supplementary proceedings requiring defendant to appear before a referee and be examined was made, and he appeared as therein required, but the referee was absent. The parties agreed to appear on another day, and did so,.but the referee was again absent.
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At chambers. On application for an order requiring defendant to appear and proceed with his examination. Action by Thomas Keihen against J. B. Shipherd. An order in supplementary proceedings requiring defendant to appear before a referee and be examined was made, and he appeared as therein required, but the referee was absent. The parties agreed to appear on another day, and did so,.but the referee was again absent. Afterwards the referee made an order requiring defendant to appear and proceed with his examination on a day named. The parties appeared. Defendant objected to the power of the…
1Opinion of the CourtMcAdam, C. J.
The absence of the referee did not terminate the proceeding, (Allen v. Starring, 26 How. Pr. 57; Brockway v. Brien, 37 How. Pr. 270; Stanley v. Lovett, 14 Hun, 412; Schanck v. Conover, 56 How. Pr. 437,) 'which may be resuscitated by an order made by the justice in continuation of the proceeding, (Schanck v. Conover, supra.) That this is the correct view of the practice is evidenced by the phraseology of section 2454 of the Code, which provides how such a proceeding shall be discontinued or dismissed. It does not provide that the absence of the justice or referee shall effect either of these…
2Cases cited3 opinions
- Brockway v. BrienNew York Court of Common Pleas · 1869
- Schanck v. ConoverNew York Supreme Court · 1878
- Allen v. StarringNew York Supreme Court · 1863
3Cited by1 opinion
- Tobias v. WaltonCity of New York Municipal Court · 1909