Citation Numbers: 148 Misc. 819
Judges: Lawrence
Filed Date: 8/25/1933
Status: Precedential
Modified Date: 1/12/2023
Under the peculiar state of facts involved in this motion I consider it necessary to state some facts leading up to the present conditions. This action was upon a farm lease. The answer contained a counterclaim. The issues were referred to Horace C. Hale in May, 1929. Hearings were had before the referee in November and December, 1929, and in January, 1930, when the case was submitted. A voluminous record seems to have been made. At the time of submission the attorneys were given the privilege to submit proposed findings. None were submitted, and after requests by the referee to the attorneys on different occasions to submit findings in order that the case might be disposed of, and on March 1, 1933, the referee decided the case and made findings. Upon these findings judgment was later and on March 27, 1933, entered. Thereafter the attorney for the defendant moved this court at Special Term held by me on April 14, 1933, to open the judgment in order that requests to find might be submitted to the referee, taking the position that otherwise he could not be protected on appeal. The referee was directed to open the action before him for the sole purpose of allowing the parties to submit requests to find within ten days and to pass on such requests. .The order submitted, however, in form seems to cancel the judgment and the report on which it is based. .
Thirty-seven requests to find were submitted by the defendant within the ten days but were not passed upon by the referee within the sixty days thereafter. After the sixty days had expired, the defendant gave notice, under section 470 of the Civil Practice Act, to terminate the reference, and thereupon this motion was made by plaintiff to reinstate the judgment or in the alternative to vacate and set aside the notice by the defendant to terminate the reference.
When the referee filed his report his official duties ceased. Three hearings had been had and a large volume of evidence taken. The defendant had not availed himself of the opportunity to submit
What the defendant sought was to have his requests to find passed upon. That was all he could reasonably expect. That he secured through the indulgence of the court without any feeling that thereby the adjudication of the referee would be disturbed.
Under the circumstances it does not seem to the court that section 470 should apply. The permission to submit findings was not the trial of an issue of fact. The issues of fact had been determined and to vacate that determination was not contemplated. The referee is directed to pass upon the requests to find submitted by the defendant within a reasonable time and make report upon which further action may be taken.