Newman v. Benedict , 125 N.Y.S. 1039 ( 1910 )

Guy, J.

This is an appeal by defendant from a judgment in favor of plaintiff for $1,4J2.53, entered upon an order affirming the report of a referee. The judgment was dated the 23d day of February, 1910. On the 22d day of December, 1909, plaintiff’s attorney procured au order on defendant’s default at Special Term of the City Court of the city of New York, referring the issues to a referee to hear and determine. The defendant moved to vacate said order of reference, which motion was denied and an appeal taken from the order denying the motion. • On March 15, 1910, the Appellate Term of this court reversed said order and vacated the order of reference, and upon appeal taken to the Appellate Division said order was modified by providing “ that either party shall have leave to apply to the Special Term of the City Court of the city of New York for the appointment of a new referee in this action ”; and, as so modified, said order of the Appellate Term of this court was affirmed. Pending the determination of the‘appeal to the Appellate Term and subsequently to the Appellate Division, plaintiff, over defendant’s objection, brought the issues on for trial before the referee. Defendant’s attorney appeared before the referee and asked that-the hearing be adjourned pending the final determination on appeal of the motion to vacate; hut this motion -was denied, and the trial proceeded before the referee, resulting in a report in favor of plaintiff and the entry of judgment as aforesaid. The Appellate Term of this court having vacated the order of reference on which the judgment appealed from is based, and its order having been affirmed by the Appellate Division, the proceed'ings had before the-referee were unauthorized and the judgment based thereon is void. ' . .

The judgment appealed from is, therefore, reversed, with costs to appellant.

Platzek and G-avegan, JJ., concur.

Judgment reversed.