Phipps v. Carman

30 N.Y. Sup. Ct. 150

Opinion

Barnard, P. J.:

The binding force of Waters v. Shepherd (14 Hun, 223) is destroyed by the Code, as altered since that decision was made.. As the Code stood when that ease was decided, it was necessary for the referee to make and deliver a report within sixty days after the' case was submitted, or the reference could be vacated.

The referee made his report, and notified the party in whose favor it was made, that it was ready for delivery. It was thought that the referee had delivered his report so far as to be entitled to recover his fees, when he offered the report to the attorney of the 'party in whose favor it was made. •

■ By section 1019 of the Code of Civil Procedure, as changed, the report may be delivered to ■ the attorney for one of the parties, or filed with the clerk within sixty days. The referee will not now have done his duty under this section, unless ho delivers his report to the clerk to be filed, in case' it is . not taken up by one. of the attorneys within the sixty days.

The order must be affirmed, with costs and disbursements.

Dykman, J., concurred; Gilbert, J., not sitting.

Ordered affirmed, with costs and disbursements.