Keep v. Keep , 23 N.Y. Sup. Ct. 141 ( 1878 )

Barnard, P. J.:

There were two suits pending, one in favor of plaintiff against defendant Lester Keep, and this one against Lester Keep and wife in favor of plaintiff. The actions were both referred to the same referee to hear and determine. The claim in this suit, as appears from the affidavit of Mrs. Keep, was to set aside- a conveyance of lands in Brooklyn, to which plaintiff and Mrs. Keep claimed to have title in fee. While the trials were proceeding before the referee, it was agreed, in writing-, between the parties in both suits, that the matters in difference in both suits should be submitted to the referee as arbitrator, and that judgment should be entered upon his report or award. The plaintiff had judgment in both actions, and the defendants appealed. The plaintiff -in this action moves to dismiss the appeal. The motion should be denied. The judgment is a judgment of the Supreme Court, entered upon a trial before a referee. The arbitration was illegal for two reasons. It was made by a -married woman, and one of the subjects of the arbitration was a claim of the parties to a fee of real estate. (2 B. S., 541.) If the submission is of no effect, then the judgment must be reviewed like other judgments, being made by a referee duly appointed to try the action as actions are usually tried, and according to legal rules.

Motion denied, without costs.

Present — BarNARD, P. J., Gilbert and LykmaN, JJ.

Motion to dismiss appeal denied, without costs.