Claim of Lester v. Village of Blasdell

Appellate Division of the Supreme Court of New York

Claim of Lester v. Village of Blasdell

167 A.D. 947, 151 N.Y.S. 1126

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 15, 1915

StatusPublished

Cited by1 cases

This text of 167 A.D. 947 (Claim of Lester v. Village of Blasdell) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Claim of Lester v. Village of Blasdell, 167 A.D. 947, 151 N.Y.S. 1126 (N.Y. Ct. App. 1915).

Pincite

Opinion

Kruse, P. J. (dissenting):

I think the order of reference was one to hear and determine. The referee heard and decided the matter, making findings of fact and conclusions of law to which exceptions were filed, but omitted formally to direct judgment to be entered. Thereupon, a motion to confirm the report was made at Special Term, but the Special Term, instead of treating the application as a motion, made findings and decided the matter directly contrary to the referee’s decision and judgment was entered thereupon. I think the only order the Special Term could make was to send the matter back to the referee to make a formal decision and direct judgment to be entered thereupon, as the Code provides. (Smith v. Geiger, 202 N. Y. 306.) While the motion to confirm the report of the referee was entirely unnecessary, I think the making of the motion did not have the effect to change the reference from one to hear and determine to one to take proof and report with the opinion of the referee. The question of a want of power to decide the matter anew by the Special Term was specifically raised by exceptions filed to the decision of the Special Term. I think the judgment should be reversed and the matter sent back to the referee.

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Kruse, P. J. (dissenting):

I think the order of reference was one to hear and determine. The referee heard and decided the matter, making findings of fact and conclusions of law to which exceptions were filed, but omitted formally to direct judgment to be entered. Thereupon, a motion to confirm the report was made at Special Term, but the Special Term, instead of treating the application as a motion, made findings and decided the matter directly contrary to the referee’s decision and judgment was entered thereupon. I think the only order the Special Term could make was to send the matter back to the referee to make a formal decision and direct judgment to be entered thereupon, as the Code provides. (Smith v. Geiger, 202 N. Y. 306.) While the motion to confirm the report of the referee was entirely unnecessary, I think the making of the motion did not have the effect to change the reference from one to hear and determine to one to take proof and report with the opinion of the referee. The question of a want of power to decide the matter anew by the Special Term was specifically raised by exceptions filed to the decision of the Special Term. I think the judgment should be reversed and the matter sent back to the referee.

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Bluebook (online)

167 A.D. 947, 151 N.Y.S. 1126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claim-of-lester-v-village-of-blasdell-nyappdiv-1915.

Opinion

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