12 Wend. 212 | N.Y. Sup. Ct. | 1834
By the Court,
This clearly was not a reference under the statute; no rule was entered referring the cause and appointing referees. The arbitrators were not officers of the court, but the judges of the parties’ own choosing. The court had no control over them, 1 Johns. 315, 492; 9 Cowen, 136; and but for the stipulation to enter judgment, the court would not entertain any motion in relation to the subject. But it may be said here as was said in Yates v. Russell, 17 Johns. R. 465 : the question is whether either party can be permitted to allege for error the entry of a rule for judgment, when that judgment is in pursuance of his own consent in writing, and under his seal. It was there held that the parties were concluded by their agreement, and should not be permitted to allege that the reference and judgmentwere not warranted by law. The only difference between that case and this is, that there a rule was entered referring the cause, and here there was not: the submission authorized only the entry of the judgment upon the award. In that case, however, as in this, all depended upon the agreement of the parties : that case was not referrible ; the whole proceeding, therefore, would have been irregular but for the maxim consensus tollit errorem. In this case there might have been a long account, but there was no rule to refer; and the rule for judgment is sustained by the same maxim which sustained the rules in that case. I am therefore of opinion that the judgment, being founded upon the consent of the defendant appearing upon the record, is valid.
It further appears, that the plaintiff has taxed his costs and caused a judgment roll, including his costs, to be signed and filed. In this the plaintiff’s attorney has proceeded erro