Chamberlin v. City of Yonkers

253 A.D. 917, 2 N.Y.S.2d 499, 1938 N.Y. App. Div. LEXIS 9258

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 28, 1938
• Status: Published

Opinion

This action was commenced in the Westchester County Court to recover damages for personal injuries sustained by plaintiff when he fell upon snow and ice on a public street in the city of Yonkers. Upon stipulation of the parties, the matter was referred tó an official referee of the Supreme Court to hear and determine the issues. The official referee awarded plaintiff $1,500 and judgment was entered accordingly. Judgment reversed on the law and a new trial ordered, costs to abide the event. Appeal from decision dismissed. An official referee of the Supreme Court is authorized to hear and report upon or to hear and determine only such actions, special proceedings, etc., as are pending in the Supreme Court or the Surrogate’s Court. (Judiciary Law, § 116, added by Laws of 1935, chap. 854; Romoser v. Wilson, Inc. [not officially reported], decided December 23,1937, opinion by McKenna, County Judge, published Westchester Law Journal, December 29, 1937.) Nor may an official referee act as an unofficial referee in any court. (Judiciary Law, § 123, added by Laws of 1935, chap. 854.) In view of the provisions of the statutes above cited, the County Court was without power to appoint the official referee to hear and determine the issues, and the judgment entered is a nullity. Nor did defendant waive its right to raise the question here, because jurisdiction cannot be conferred by consent or stipulation, and the objection may be raised at any stage of the action. (Robinson v. Oceanic Steam Nav. Co., 112N. Y. 315; McConnell v. Williams Steamship Co., Inc., 239 App. Div. 393; affd., 265 N. Y. 594; City of Oswego v. Montcalm Dock Co., Inc., 245 App. Div. 555.) Lazansky, P. J., Davis, Johnston, Adel and Taylor, JJ., concur.