Korobkin v. Chalek

7 A.D.2d 924, 183 N.Y.S.2d 458, 1959 N.Y. App. Div. LEXIS 9966

Opinion

In an action to recover damages for breach of a contract of employment, the appeal is from an order (1) granting a motion to vacate and set aside an order of an Official Referee dismissing the complaint for respondent’s failure to appear on an adjourned date to continue his examination before trial and to produce certain records as directed by the Official Referee to whom the continuation of the examination had been referred by an order dated March 5, 1958 on the stipulation of the parties, and (2) remitting the matter to the Official Referee for continuation of the examination as provided by the order of reference. Order affirmed, with $10 costs and disbursements. By the stipulation and order based thereon the Official Referee was empowered only to preside at an examination before trial and to rule on objections. He had no power to dismiss the complaint, and furthermore such action could only be taken by the court on notice to the respondent. (Civ. Prac. Act, § 299.) Wenzel, Acting P. J., Beldock, Murphy, Hallinan and Kleinfeld, JJ., concur. [13 Misc 2d 582.]