Addazzio v. Kalbfleisch

Cuff, J.

Action is to foreclose a mechanic’s hen. It was referred to an official referee to hear and determine all the issues. The official referee has rendered a decision in favor of plaintiff and signed his findings of fact, conclusions of law and decision. In his decision he has appointed a referee to sell the realty affected by the lien. He named no depository. Defendant disputes the correctness of the decision of the official referee and claims that a motion to confirm that decision should be made. That procedure is not in accordance with practice. Where all the issues are referred for the purpose of being determined, judgment should be entered upon the referee’s decision. (Rules Civ. Prac. rule 198.)

The next question is did the referee have the power to appoint a referee to sell. The power of the court to appoint a referee in certain cases has been long recognized. It is a power, in view of rule 198, that should be guardedly exercised. Sections 80 and 466 of the Civil Practice Act seem to be the statutory authority for such appointments. The appointees are not limited to members of the bar." The power restricts the appointee to “ a trial of the issues.” (Civ. Prac. Act, § 466.) Nothing that I can find authorizes the referee to delegate any of his powers to another. He has no powers except those conferred upon him by the appointment. He was appointed to try the “ issues.” He may be requested to hear and report. His assignment ends with his decision or the filing of his report. If, to carry into effect the judgment entered upon his decision, a referee to sell is required, application should be made to the court for such appointment. I do not find that the court can delegate its power to appoint a referee to sell real property. (Civ. Prac. Act, § 506.)

The referee’s decision will be modified to the extent of striking out the appointment of a referee. Judgment may be entered upon his decision as so modified.