Buchholtz v. Florida East Coast Railway Co.

69 N.Y.S. 682 | N.Y. App. Div. | 1901

Per Curiam :

Upon a motion where the facts are undisputed we can find no warrant for the court’s sending the matter to a referee to take further proof. Such a practice would entail additional expense and delay, and where both sides have had full opportunity to present all the facts it is usually unnecessary to have a reference. If essential the court could have allowed or directed additional affidavits to be served by either party. It is only in a very unusual and exceptional case that a reference should be ordered to aid the court in deciding a motion.

The principal question here presented was whether the person on whom service was made was the managing agent of the defendant. That the defendant had no property in the State was not disputed The facts bearing upon this principal question were fully presented, ■and it was the duty of 'the court on the affidavits to decide the motion.

The order is accordingly reversed, with ten dollars costs and disbursements to appellant to abide the event, and the proceeding remitted to the Special Term for decision.

Present—Van Brunt, P. J., Rumsey, Patterson, O’Brien and Ingraham, JJ.

Order reversed, with ten dollars costs and disbursements to appellant to abide event, and proceedings remitted to Special Term for decision. •