Ubsdell v. Root

3 Abb. Pr. 142, 1 Hilt. 173

• Court: New York Court of Common Pleas
• Decided: July 15, 1856
• Status: Published

Opinion

Ingraham, F. J.

The order of reference in this case was made on motion for that purpose. The cause is one in which a reference may be made without the consent of parties, it being an action on an account. Where such is the case, it rests in the discretion of the judge who hears the motion whether to refer it or not. In such a case the exercise of such a discretion is not the subject of review by the general term, as a

matter affecting the merits. We have provided for reviewing such orders, when the party aggrieved obtains the judge’s certificate that the question involved is of sufficient importance, or doubt, to warrant such review. As. no such certificate was obtained, we think the order appealed from was not an order involving the merits, and that no appeal will lie from it. The cases cited, (Gray v. Fox, 1 Code R. N. S., 336 ; Bryan v. Brennan, 7 How. Pr. R., 359; Dean v. The Empire State Mutual Insurance Company, 9 Ib., 69), are in point.

Even if this order was an appealable order, the defendant, by appearing on the reference and proceeding with the trial, has waived any right to appeal. If he had still intended to prosecute the appeal he should have applied for a stay of proceedings. It can hardly be considered as proper or consistent with a due administration of justice, that after the parties have appeared and tried a cause on the merits, the court should set aside all the proceedings upon a mere question of practice.

It also appears from- the papers, that the referee was agreed upon between the parties, and the subsequent proceedings on reference abundantly show that the reference was necessary.

The motion is granted.