105 A.D. 88 | N.Y. App. Div. | 1905
In Baird v. Mayor (14 N. Y. 382) the appellant had opposed the reference ordered, but suffered it- to proceed without further objection. The court held that this was a consent which involved a waiver of any constitutional right to trial by jury. A fortiori the ruling applies to the case at bar, for not only did this reference proceed without objection, but it was ordered upon consent. I j think that the court had no' alternative. It was bound under sec- j tion 1011 of the Code of Civil Procedure to appoint a referee in place of Judge Dillon. May v. Moore (24 Hun, 351; cited in 1 Knowlton v. Atkins, 134 N. Y. 322) and Hustis v. Aldridge (144 id. 508) are directly in point.
The mandate of the statute, as interpreted by the decisions, and the acts of the parties preclude any discussion upon the broad lines suggested by the learned counsel for the appellant, while the suggestions as to the policy of the procedure can be addressed to the referee.
The order should be affirmed, with costs.
Hirschbeeg-, P. J., Bartlett, Woodward and Hiller, JJ., concurred.
Order appointing new referee affirmed, with ten dollars costs and disbursements.