In re the Accounting of Vilmar

10 Daly 15

Opinion

Larremore, J.

Section 1016 of the Code of Civil Procedure pro vides that the referee must before proceeding to hear the testimony be sworn faithfully and fairly to try the issues, or to determine the question referred to him, as the case requires, and to make a just and true report according to the best of his understanding. “ But where all the parties whose interests will be affected by the result are of age and appear in person or by attorney, they may expressly waive the referee’s oath. The waiver may be made by written stipulation or orally. If it is orally it must be entered in the referee’s minutes.”

I cannot find any such entry in the minutes of the referee herein, nor can I find any allusion to such a waiver having-been made in his report, and any further proceedings under the order would be therefore irregular (Malcolm v. Foster, 5 N. Y. W. Dig. 310; Exchange Fire Ins. Co. v. Irving, Id. 587).

Under these decisions I must send the report back.

Report referred back.