18 Johns. 26 | N.Y. Sup. Ct. | 1820
delivered the opinion of the Court. This *s an action of assumpsit on the report of referees, or, as the plaintiff contends, on the award of arbitrators.
The plaintiff' insists, that as the original action did not involve the examination of long accounts, it was not referable under the statute, and that therefore it may be treated as a
I am satisfied, that had the Court of Common Pleas given judgment for the plaintiff on the report, that such judgment would have been above all exception ; for although, strictly speaking, the case might not have required the examination of long accounts, the consent of the parties to a reference would have concluded them from making the objection, because, it being an action of assumpsit, there might have been long accounts. The reference was an admission that the case was within the act, and the Court of Common Pleas would never have listened to an objection to the contrary. Had the action been in tort, then the objection to the jurisdiction of the Court to refer the cause would have been open to either party, on a writ of error.
I do not think the plaintiff can treat the report as an award, and sue upon it. The differences between the parties were not referred, but the cause pending in Court was referred 5 and so the parties considered it, for the plaintiff entered a judgment. This judgment was vacated, upon what grounds we are not informed, but we must intend for good and valid reasons ; and it appears to me that the vacating the rule for judgment annulled the report. The Court of Common Pleas had jurisdiction, and their rule, unless itself vacated, put an end to the effect of the report.
This left the plaintiff where he was before, at liberty to go to trial in the original cause. We are, therefore, of opinion; that this action on the report cannot be sustained.
Judgment for the defendant.
