Agricultural Insurance v. Darrow , 75 N.Y.S. 128 ( 1902 )

Spring, J.:

This action was brought by the plaintiff, a fire insurance corporation, to recover of the defendants, who were its agents in Chicago, 111., premiums upon policies of insurance which it is alleged had been withheld. Lpon the stipulation of the attorneys for the respective parties an order was entered November 9,1900, referring the issues to a referee for trial. The action was tried and finally submitted to the referee April 8, 1901. The firm of Porter & Porter represented the defendant Cummings, who alone answered. Judge Porter, the senior member of that firm, died May 2l, 1901, and his copartner was at that time in an asylum mentally incompetent, and in the month of June following was adjudged to be of unsound mind.

On the twenty-fifth of May the plaintiff’s attorney' by notice in writing advised the defendant Cummings of the death of Judge Porter and of the disability of the other member of the law firm and notified the defendant to obtain another attorney to act in his behalf in this action. Walts & Pitcher, by order. of the Special Term, entered on the 8tli day of July, 1901, were substituted as the. attorneys for the defendants at their request. On the 7th day. of June the referee delivered his report to the attorneys for the plaintiff directing that judgment be entered in its favor for the sum of $1,106.97. Nothing was done pursuant to this report until after the substitution of the attorneys for the defendants, and judgment Was thereupon entered July 18,1901.

The contention of the respondents is that upon the death of Judge Porter, as his partner was mentally incompetent, all proceedings were stayed by section 65 of the Code of Civil Procedure, and the delivery of the report was in violation of this section. The section reads as follows: “ If an attorney dies, is removed or suspended, or otherwise becomes disabled to act, at any time, before judgment in an action, no further proceedingshall.be taken in the action, against the party for whom he appeared, until thirty days after notice to-appoint another attorney, has been given to that party, either personally or in such other manner as the court directs.” The referee was required to file with the clerk, or deliver to- the attorney for one of the parties, his report within sixty days from the final submission of the case. (Code Civ. Proc. § 1019 ; Little v. Lynch, 99 N. Y. 112 ; Russell v. Lyth, 66 App. Div. 290.)

It was important for the referee to comply with this requirement . of perhaps, lose the fees which he had earned. The object of section 65 is to hold all proceedings in the action “ against the party ” in abeyance after the death of his attorney for the period of thirty days to enable him to employ another attorney. It is a salutary safeguard for the protection of a party whose attorney has died or become disqualified, but where the referee who tried the case files or delivers his report pursuant to another section of the Code and nothing further is done during the inhibited time we apprehend there is no transgression of the spirit of section 65. No harm can result to the defeated party unless some proceeding is taken- in behalf of the successful party. The referee may live at a distance from the litigants or their attorneys, who may not be aware of the death or disability which stays the proceeding, and may innocently cause his report to be filed or delivered, and we apprehend this is not such a step in the action as the statute was intended to prohibit.

In Commercial Bank v. Foltz (13 App. Div. 603), relied upon by the counsel for the respondents, the decision of the trial judge was followed up by a supplemental decision and judgment of foreclosure and sale entered and the premises were sold, all without any notice to the party defeated, whose attorney had been disbarred and no substitution made. In that case there was a persistent course of proceeding in disregard of the section quoted and to the manifest damage, of the defendant. In each of the other cases where it has been held that the statute was violated, there was an explicit affirmative act on the part of the attorney to progress the action.

If we are in error in the foregoing conclusion, we believe it may well be said that the actual delivery of the report was after the lapse of thirty days during which the proceedings were stayed. It was so treated by the attorney for the plaintiff, and the delivery, even after the sixty days given the referee to make and render his report, would be effective against the party who had not- sought to terminate the reference.

At best, if there was a technical disregard of section 65 of the Code in delivering the report, it was a mere irregularity, and ten days elapsed after attorneys for the defendants had been substituted upon their request before judgment was entered. These attorneys must have known that sixty days had long expired since the final submission of the case, and they should have proceeded at once, if they expected to end the reference or impeach the delivery of the report. They cannot be permitted to remain quiet until after the entry of the judgment and then claim that all the proceedings were annulled by the action of the referee in delivering the report.

The order should be reversed with ten; dollars costs' and the disbursements of this appeal, and the motion to set aside the report, judgment, stipulation and order of reference be denied, with ten dollars costs.

McLennan,. Hiscook and Davy, JJ., concurred; Williams, J., not sitting.

Order reversed, with ten dollars costs and disbursements, and motion to set aside judgment, stipulations, order of reference, report' of referee denied, with ten dollars costs.