Scubder v. Snow

29 How. Pr. 95

Opinion

Morgan, J.

A justice of this court has no authority to appoint a referee except at special term. As a chamber order the appointment was invalid unless it ivas authorized by the decision of the court at special term. I presume it was so authorized, and would have been valid if all order had been drawn up and entered in conformity with the decision. It is the business of counsel to see to it that the decision of the court at special term is properly incorporated into an order and duly entered with the clerk to make it effective.

Although the court may afterwards allow the order to be entered nunc pro tunc, in order to preserve the subsequent proceedings, it is usually allowed only on payment of the costs of the motion.

As no authority is shown for the appointment of the referee, I think his report is inoperative, and will not sustain the judgment founded upon it. If the plaintiff’s attorney had appeared before the referee, and a trial had been had upon the merits, I should feel bound to grant an order allowing the defendant’s attorney to draw up and enter an order of reference nunc pro tunc in pursuance of the decision of the court at special term. The motion is granted with ten dollars costs to abide the event.