Union Bag & Paper Co. v. Allen Bros. , 88 N.Y.S. 368 ( 1904 )

Chester, J.:

The referee having made and delivered his decision or report, his functions and power with reference' to the case were ended, and neither the referee nor the Special Term had any power to alter or change the decision in any matter of substance. (Heath v. N. Y. B. L. B. Co., 146 N. Y. 260; Kennedy v. McKone, No. 2, 10 App. Div. 97.) Neither had the referee in such a case any power to settle a decree. That duty rested upon'the court at Special Term, whose power in so settling it Was confined to making the decree conform to the decision as made.

The learned justice at Special Term undoubtedly had these principles in mind, for the order made by him is one referring it to the referee who. tried the case “ ¡to settle and approve some form of judgment to be entered in this action in accordance with the referee’s report and findings made herein, * * * and that he report the same to this court with his recommendations.” If the. judgment had not been entered, and that was all there was of the order, we might be inclined, under the circumstances of this case, to approve of it, but -the order goes further and vacates the judgment which has been enteréd. The court would undoubtedly have the power to vacate the judgment entered if it appeared that it did not conform to the decision of the referee. So far as it goes it does not appear that it contains anything that was not decided by the referee. The counsel for the respondent indeed fails to point out anything in the judgment as entered which is not authorized by the decision made. He does point out, however, that the decree does not contain all that was decided, and this is practically conceded by the appellants’ counsel so far as it relates to the injunction in favor of the plaintiff and against the defendants. In this respect the counsel for the appellants offered in the Special Term that the decree might be amended so as to include the matter so omitted. The counsel for the respondent insists, however, that there are omissions in other respects in the decree as entered, but he fails to specifically point out such omissions by way of proposed, amendments. If there are any such omissions his remedy was to make a motion to amend the decree as entered instead of to move to vacate it,- and on such motion to specify clearly in what respect it should be amended to make it conform, to the decision. (Oliver v. French, 82 Hun, 436.)

While after the trial of issues of fact by a referee and a report thereon it has been the usual practice, in the absence of an agreement between the attorneys for the respective parties as to the form of the judgment, to have the same settled by the court, and while the duties of the clerk are wholly ministerial, nevertheless the clerk lias the power, under section 1228 of the Code of Civil Procedure, after such a trial and decision to enter judgment as directed by the decision, upon filing such decision in his office.

The fact that there were numerous rulings by the referee upon the requests of the respective parties for findings undoubtedly added to the difficulty in preparing a judgment in conformity with the decision, yet the defendants’ attorneys having prepared a judgment following what they deemed to be the directions in the decision with respect to it and having submitted such judgment to the plaintiff’s attorneys for their suggestions, the failure of the latter to respond for upwards of twenty days with any criticisms upon it or with any suggested changes, justified the defendants’ attorneys, without further delaying the matter, in procuring the clerk to enter the judgment, leaving the plaintiff’s attorneys to move to amend it, if it did not conform to the decision in all respects.

We are not prepared to say under the circumstances of this case that the judgment was .improperly entered by the clerk, and we think it should not have been vacated.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave, however, to plaintiff to move to amend the judgment to conform to the decision.

All concurred, except Chase and Houghton, JJ., who concurred to reverse that part of the order appointing referee only.

Order appealed from,reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave to plaintiff to move to amend judgment to conform to decision.