Corning v. Cooper

7 Paige Ch. 587, 1839 N.Y. LEXIS 418, 1839 N.Y. Misc. LEXIS 86

• Court: New York Court of Chancery
• Decided: June 3, 1839
• Status: Published

Opinion

The Chancellor.

The agreement in the master’s office, to suspend the rule, in other words to waive the objection that the master’s report was not made and filed within the twenty days after the entering of the order to refer the exceptions, made the subsequent filing of the report regular. The objection that such agreement was not in writing, and signed by the parties or their counsel, is not well taken. The provisions of the 121st rule do not apply to an agreement, between the solicitors or counsel of the parties, made in the presence of the court; or to an agreement, relative to the proceedings on a reference, made in the presence of the master, and which agreement is certified by him. The master through inadvertence neglected to fix the time for putting in the further answer; but that was an error which did not injure the defendant, as he had the right to put in his further answer immediately if he thought proper. The only effect of it was to compel the complainant to make a special application to the court to obtain a further answer. The cause must therefore be stricken from the calendar, and the defendant must answer the exceptions in thirty days, after notice of the order to be entered on this decision. Upon the other facts appearing in the affidavits, however, I think this is not a case for charging the defendant with the costs of this application.