Combs v. Wyckoff

1 Cai. Cas. 147, 1 Cole. & Cai. Cas. 202

Opinion

Livingston, J.

delivered the opinion of the court. The defendant moves to set aside the report of referees, alleging,

1. That it was agreed by the plaintiff’s attorney, that no report should be made until the defendant’s witnesses could be procured, which was afterwards disregarded.

This agreement not being in writing, and being denied by the plaintiff’s attorney, must be laid out of sight. The court cannot too frequently inculcate the necessity of reducing to writing all agreements between gentlemen of the bar.

(a) Many mistakes, much misunderstanding and controversy will by this measure be avoided. In the present case it appears that two months elapsed before the report was made, which was allowing sufficient time for the defendant to produce his witnesses. If they were abroad, he might have applied to the court (for a term intervened between the appointment and report of the referees) for an order on them not to proceed for a reasonable time, (b) which would have been granted, or a judge at his chambers would have ordered the proceedings to stay until application should be made to the court, (a)

2. Another objection is, that a sum was allowed, which was not proved to be due. Of this allegation there is no satisfactory proof, and therefore we can take no notice of it.

3. A third objection is, an emnity between the defendant and one of the referees.

This reference, it is observed, was on a nomination by the defendant’s attorney, and although he might have been ignorant of the quarrel spoken of, the defendant by his acquiescence in the appointment, and submitting the cause to his decision, cannot now avail himself of this challenge. He should have applied to the court to remove him and appoint another.(b) It is somewhat remarkable, however, that the referee who is repugnant or hostile to the defendant, should be his special bail in this very cause. [*149] *4. The defendant states that “ he can now introduce evidence to diminish at least the damages reported.” This is very loose, to say the least. Why was not this testimony obtained before ? and to what extent will the damages be reduced, if it be offered now ? Will it justify a diminution of only one dollar, or less? If so “rife minimis non curat lex," and if the discovery had been .made even prior to the report it would be no reason for disturbing it. Let the defendant take nothing by his motion, and pay the costs of this application.

Motion denied, with costs.(a)

S. P. Bain v. Green, 2 Caines’ Rep. 95. Brandt v. Berrian, 3 Caines’ Rep. 131. Parker v. Root, 7 Johns. Rep. 320. The rule extends to parties in the suit; Shadwick v. Phillips, 3 Caines’ Rep. 129, and though the agreement be admitted, the rule will be enforced, unless expressly waived. 2 Caines’ R. 95. 3 Caines’ R. 131. See also Griswold v. Lawrence, 1 J. R. 507.

S. P. Sands ads. Bird and others, Col. Cases, 105.

See as to adjournment before referees; Jacksons v. Ives, 22 Wend. 637 ; Ex parte Rutler, 3 Hill, 464; Graham v. Morton, 6 Wend. 552; Langley v. Hickman, 1 Sand. 681; Cleveland v. Hunter, 1 Wen. 104; Sudam v. Swart. 20 J. R. 476.

а) When a report was made without giving time to adduce testimony in proof of items agreed to be admitted, but at the meeting refused to be allowed, the court set aside the report, though the agreement was by paroL Forbes v. Tracy & Tracy, Caines' Prac. 495. S. C. by the name of Forbes v. Tracy and another, 2 Johns. Cases, 224.

It has been since ruled that when parties elect to act for themselves in the nomination of referees, without the intervention of the court, a motion to set aside the report will not be heard, Miller & Underhill v. Vaughan, 1 Johns. Rep. 315, though accompanied by an affidavit of merits. Stephenson v. Beech t, ibid. 492.

A motion to set aside a report of referees ought to be made in the term next after the report, Comstock v. Rathbone, 1 Johns Rep. 138, and when on the merits, is an enumerated motion. Clinton v. Elmendorf, 3 Johns. Rep. 143. Note, the marginal statement of this ease in the report ia right, that in the index wrong." See the point as ruled above. Caines’ Prao. 494. Though it is not necessary that the report should have been filed, provided it has been delivered to the party who urges that as an objeetic a. Thompson v. Tompkins, 1 Johns. Cases. 238.