Deagan v. King

Appellate Division of the Supreme Court of New York

Deagan v. King

83 A.D. 428, 82 N.Y.S. 422

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

DecidedMay 15, 1903

StatusPublished

This text of 83 A.D. 428 (Deagan v. King) 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

Deagan v. King, 83 A.D. 428, 82 N.Y.S. 422 (N.Y. Ct. App. 1903).

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Opinion

Per Curiam:

Judgment was entered in this action upon the report of a referee in April, 1901. In February, 1903, an order was entered directing that the judgment be vacated and the matter sent back to the referee “ to amend his report by stating that the complaint herein was dismissed upon the merits and that judgment be entered upon the merits.” The order was based upon the report of the referee, the judgment entered and an affidavit of the attorney for the defendants which set forth the history of the action, that the referee had stated he'had decided the case upon the merits, and that it was by an inadvertence his report did not state that the complaint was dismissed upon the merits. The affidavit of the referee is not presented to the effect that he made a mistake or that the report made by him is not in the form in which he intended it to be, and if it is, then the court has no power to order him to change it. If the plaintiff was not satisfied with the judgment entered upon the report, he should have appealed from it instead of acquiescing in it for upwards of eighteen months. The statement contained in the affidavit of defendants’ attorney to the effect that the referee had stated that it was by an inadvertence the report did not state that the complaint was dismissed upon the merits is quite insufficient to authorize the court to direct, by order, the referee to change his report. The court has no power to direct a referee to decide one way or the other or to change his report after it has been made, or to permit him to make a new report for the purpose of correcting a mistake inadvertently made therein, unless such mistake be clearly and satisfactorily shown by competent evidence, and that fact does not here appear, to say nothing of the laches of the defendants, or that they did not move within one year. (Code Civ. Proc. §§ 724, 1282.)

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Patterson, O’Brien, Ingraham, McLaughlin and Laughlin, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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Per Curiam:

Judgment was entered in this action upon the report of a referee in April, 1901. In February, 1903, an order was entered directing that the judgment be vacated and the matter sent back to the referee “ to amend his report by stating that the complaint herein was dismissed upon the merits and that judgment be entered upon the merits.” The order was based upon the report of the referee, the judgment entered and an affidavit of the attorney for the defendants which set forth the history of the action, that the referee had stated he'had decided the case upon the merits, and that it was by an inadvertence his report did not state that the complaint was dismissed upon the merits. The affidavit of the referee is not presented to the effect that he made a mistake or that the report made by him is not in the form in which he intended it to be, and if it is, then the court has no power to order him to change it. If the plaintiff was not satisfied with the judgment entered upon the report, he should have appealed from it instead of acquiescing in it for upwards of eighteen months. The statement contained in the affidavit of defendants’ attorney to the effect that the referee had stated that it was by an inadvertence the report did not state that the complaint was dismissed upon the merits is quite insufficient to authorize the court to direct, by order, the referee to change his report. The court has no power to direct a referee to decide one way or the other or to change his report after it has been made, or to permit him to make a new report for the purpose of correcting a mistake inadvertently made therein, unless such mistake be clearly and satisfactorily shown by competent evidence, and that fact does not here appear, to say nothing of the laches of the defendants, or that they did not move within one year. (Code Civ. Proc. §§ 724, 1282.)

The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Patterson, O’Brien, Ingraham, McLaughlin and Laughlin, JJ.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

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Bluebook (online)

83 A.D. 428, 82 N.Y.S. 422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deagan-v-king-nyappdiv-1903.