Bucklin v. Chapin , 35 How. Pr. 155 ( 1868 )

By the Court, Mullin, J.

The Eevised Statutes (vol. 3, 5th ed. 175, § 41) provide, if an executor or administrator doubt the justice of any claim presented to him, he may enter into an agreement in writing with the claimant to refer the matter to one or three referees, tó be approved by the surrogate; and upon filing such agreement and approval with the clerk of the Supreme Court, a rule shall be entered by the clerk, referring the matter to the persons so selected. The next section clothes - the referees with the same powers as if the reference was in an action in the court in which the order of reference is entered.

Id order to confer jurisdiction on the court under this statute, it is not necessary there should be a literal compliance with its terms; a substantial compliance is enough.

To give jurisdiction, there must be:

1st. An agreement in writing, to refer. There is no formal agreement, signed by the parties, but the order signed by the surrogate recites the presentation of the claim, and that the parties have agreed on a reference. The attorneys of the parties sign a writing, at the foot of the order, that they, the parties, consent to the order. Laying out of view the presumption that a formal agreement was prepared, I think the order and consent, taken together, are an agreement in writing to refer.

If the attorney for the administratrix had made an offer in writing to refer, and the attorney had signed and delivered to her a written acceptance of the offer, it would not be contended but that the two papers would constitute a valid agreement. Suppose the surrogate had written, the parties have agreed to refer the claim in dispute to these men as referees, naming them, and the attorneys had written beneath it, “we hereby agree to the above reference;” can it be doubted but that the two papers, taken together, would have been an agreement under the statute ? This is exactly what has been done. The paper written by the surrogate takes the form of an order, instead of a mere statement that the parties had agreed to refer.

2d. The persons agreed on as referees must be approved by the surrogate.

There can be no question but that the surrogate approved the men selected. Ho more conclusive evidence of approval could be given.

3d. The agreement and approval must be filed.

They were filed, and the fact of filing is noted on the paper.

4th. A rule referring the claim to the persons indicated must be entered by the clerk of the Supreme Court.

The agreement takes the form of an order. It was filed with one of the clerks of the Supreme Court; and the order must be entered in that court, as there is no other court having jurisdiction' to make the order.

Entitling the order in the surrogate’s court could not impair the regularity of the order. The county clerk was not the clerk of the surrogate’s court; he could not enter it, therefore, in that court, and the entry could have effect only in the Supreme Court, whose clerk he was, and in which court it could be regularly entered.

But assuming that it was never entered by the clerk, it can be done nune pro tune, and should be so entered, to prevent a failure of jurisdiction.

But if it must be assumed that the papers are not in conformity to the statute, I am nevertheless satisfied that the referees acquired jurisdiction to hear, try and determine the matters in controversy between the parties, and that their report is legal and binding on the parties, until it is set aside by the court, in some proceeding properly instituted for that purpose.

The Supreme Court has jurisdiction over the claims which were submitted to the referees; in other words, it has jurisdiction of the subject matter. By the voluntary consent and appearance of the parties, jurisdiction of their persons was obtained; and when jurisdiction over both is acquired, the proceedings thereafter are valid, however * irregular they may be.

Section 270 of the Code provides that all or any of the issues in an action may be referred upon the written consent of the parties. Under the old practice, the reference of the issues in an action not referable, or to a greater or less number than the statute prescribed, was a discontinuance of the action, and the reference became an arbitration, merely. It will be seen that a consent in writing is necessary to .refer issues, in all cases in which the court may not compel a reference; and hence a written consent is just as necessary to a valid reference under the Code as a vajid reference under the statute relating to the reference of claims against executors and administrators. It was held in Leycroft v. Fowler, (7 How. Pr. Rep. 259,) that the consent to refer under section 270 of the Code may be written by the parties, or their attorneys, or by the clerk entering their consent in his minutes, or by the referees in their minutes, consent being given thereto. And the parties might waive any entry other than that made by the referees on their minutes. In that case, after appearing before the two referees to whom the issues had been referred, a third was added, and the only entry was by the referees in their minutes. The same was held in Keator v. Ulster Plank Road Co., (7 How. Pr. 41.) In that case there was no writing; the agreement to refer was in open court; and it was held the requirement of the statute, as to consent in writing, could be and was waived.

As to the power to waive the requirement, see Baker v. Braman, (6 Hill, 47;) Lee v. Tillotson, (24 Wend. 337;) People v. Murray, (5 Hill, 468;) and Embury v. Conner, (3 N. Y. Rep. 511.)

In Harris v. Bradshaw, (18 John. 26,) a rule of reference was entered by consent, in an action of assumpsit, but the trial did not require the examination of a long account. The cause was tried, a report made and sued upon as an award. The court held the reference regular, and said the consent of the parties to a reference concluded them from objecting that the action was not referable. It being assumpsit, may have involved long accounts. The reference was an admission that the case was within the statute, and the court would not listen to an objection to the contrary.

Proceeding upon a reference is a waiver of all objection because of irregularities. (Garcie v. Sheldon, 3 Barb. 232.) In Bonner v. McPhail, (31 Barb. 106,) the action was slander, for words spoken in reference to the evidence of a plaintiff in an action tried before a referee. Ho order of reference had been entered, nor was any entered until some two months after the trial, when one was entered nune fro tunc. It was held by the general term, in the second district, that the referee had no power to administer oaths, but that the omission to obtain the order of reference before the referee proceeded to hear the cause, was an irregularity which the parties might waive or correct, so as to give effect to the report.

In Comstock v. Olmstead, (6 How. Pr. 77,) Judge Grridley decided that when a claim was presented against an estate and rejected, and an agreement to refer entered into, but it was never filed nor rule entered, the court did did not become possessed of the case ; and he cites in support of the position, Robert v. Ditmas, (7 Wend. 525,) in which Savage, Oh. J., says there must be an agreement in writing filed, as the foundation of the rule to refer; there must be a report; and the report must be confirmed. It will be seen, by reference to the opinion of the chief justice, that he was not speaking, nor was he called to speak, as to whether compliance- with each of these requirements was essential to give validity to the report. He spoke of them as he would of the service of process, joining issue and serving notice of trial as necessary to a judgment.

But while the general rule is that each step is necessary,, yet it does not follow that some of them may not be waived. I can see no more necessity for an agreement in ■writing and rule of reference in the class of cases under consideration than under section 270 of the Code, already referred to. If they may be dispensed with in the. one case, so may they in the other.

The appearance before the referees, the trial of the claim presented, and report thereon, are all that are necessary to justify the entry of a judgment.' All the preliminary steps may he supplied nunc fro tune. (1 Wend. 314.)

[Onondaga General Term, April 7, 1868.

I think the order should he reversed, and the appeal, &c. restored.

Ordered accordingly.

Foster, Mullin and Morgan, Justices.]