Clark v. Pemberton

64 A.D. 416, 72 N.Y.S. 232

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 15, 1901
• Status: Published

Opinion

Goodrich, P. J.:

The action was brought to recover damages for neglect of defendant, an attorney at law, in professional relations. The action was referred to a referee and finally submitted to him on December 22, 1900. - On February 21, 1901, .the referee notified the defendant that he had decided in his favor. The report* however, is dated on the twenty-fifth. The defendant died March twelfth. The report was not filed or delivered to the defendant’s attorney till April 25, • 1901, when it was taken up by the personal representatives of the deceased and a judgment was entered thereon against the plaintiff on June fifteenth.

The plaintiff .moved to set aside the judgment;; the court denied the motion and the plaintiff appeals.

The Code of Civil Procedure (§ Y63) provides that “If either party to an action dies after * * * a verdict, report or decision, * * * but before final judgment is entered, the court must'enter final judgment in the names of the original parties ; ” and section Y65 provides that “ this title does not authorize the entry of a judgment against a party who dies before a verdict, report or decision is actually rendered against him.”

It is evident that the appeal turns upon the question whether the signing of a referee’s repbrt without filing or delivery to one of the parties constitutes a “ rendering ” of such report.

In Little v. Lynch (99 N. Y. 112) the court, referring to section 1019, providing that a referee’s report “ must be either filed with the clerk or delivered to the attorney for one of the parties within sixty days from the time when the cause or matter is finally submitted,” held that a tender of the report within the time limited was not equivalent to delivery within the meaning of that section.

I can discover nó difference in the effect of the different language used in section 1019 and sections 763 and 765. There is no verdict in an action until it is announced in open court and entered. There is no decision until it is entered or filed. There is no report of a referee until it is filed or is delivered to the attorney of one of the parties. The signing of a report is not equivalent to a filing or delivery.

It follows that there was no report rendered in the present action until after the death of the defendant, and that there was no authority for the entry of a judgment against the plaintiff in the name of the original parties.

The respondent’s counsel cites the case of Craig v. Craig (66 Hun, 452), decided by the old General Term of the first department, but we cannot agree with the construction placed by that court upon the case of Little v. Lynch so far as it conflicts with the views we have expressed.

The order should be reversed and the motion to vacate the judgment should be granted.

Bartlett, Hirschberg, Jenks and Sewell, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion to vacate judgment granted.