In re Cullinan

96 N.Y.S. 751 | N.Y. App. Div. | 1905

Smith,. J.:

The appeal from the order made at the Saratoga Special Term held by Mr. Justice Kellogg, refusing to set aside the order of reference, is not well taken. One Special Term has no power to review the order of another Special Term. Such review can only be had upon appeal.

The appeal from the order of -reference presents a more difficult question. The law now provides that upon the presentation of a petition and of an answer raising a material issue, “ the said justice, judge or court shall hear the proofs of the parties in relation to the allegations of the petition or answer.” (Liquor Tax Law [Laws of 1896, chap. 112], § 28, subd. 2, as, amd. by Laws of 1905, chap. 680).. In Matter of Bohm (4 Hun, 558) application had been made to vacate an assessment under chapter 312. of the Laws of 1874 (amdg. Laws of 1858, chap. 338). It was in that law provided for an application to a judge of the Supreme Court at Special Term or in vacation, “ who shall thereupon, upon due notice to the counsel of the corporation of the city in which the: lands so assessed are situated, proceed forthwith to hear the proofs- and allegations of the parties.” It was held that under this requirement of the statute the court might order a reference to take evidence and report to the court. In discussing the right to order a reference Mr. Justice Daniels says : “ It is claimed, however, that the act requires the proofs to toe taken in open court. But that is clearly a misapprehension. It simply provides that the court shall proceed forthwith to hear the proofs and allegations of the parties, not that they shall be taken as well as heard before the court. How the proofs are, to be taken the Legislature has not provided. And for that reason they may be taken as that is usually done in similar proceedings.”' Mr. Justice Daniels proceeds then to discuss the right to order a reference and holds, that in all special proceedings a reference may be ordered to “ take.evidence and report to the court upon the issues raised: The .statute construed hqthe case cited is precisely similar to that in the-case at bar. This decision is controlling authority upon the construction of the statute governing this. case. ■ :

The appellant contends, however,, that a contrary intent is indi- • cated by the amendment of .the statute made by chapter 680 of the Laws of 1905. Before that act the statute read' that' in case of . material issue made, the justice, judge or court should hear the proofs of the parties and further, ■“ may, if déeméd necessary or proper, take testimony in relation to-the allegations- of the petition or answer, or appoint a refere.e to take proofs in relation thereto and report the evidence to such justice, judge/ or court without opinion.” (Liquor Tax Law, § 28, subd. 2, as amd. by Laws of 1903, chap. 486.): This part of the old statute was omitted. in the amendment made by chapter 680 of the Laws of 1905. -The appellant argues that this omission could only signify the intent .of the Legislature that the proofs should be taken before the court and not before the referee. The: argument is not without force. Under all the circumstances surrounding the - case, however, we are of- the opinion that it is not controlling. In the first place the statute as it' now reads authorizes a reference- under a construction which has been for a long time settled by the courts. Again, we can conceive-of no question of public policy, as in the case of divorce actions, which would induce the Legislature to place So large a btirden upontlie courts which could under Well-settled practise be placed upon-referees who should report the -evidence to the court. This might not be so burdensome in -the country districts, but in Greater New. York, to which the act also applies, the courts are already so burdened that important litigation is much too -long delayed, A construction of the statute should not, therefore, be unnecessarily adopted which would increase the necessary delays in the consideration of important litigation by the courts. ■ •

Somewhat analogous to this question was the question upon the 'amendment to the Statute of Frauds made by chapter 464 of the Laws of 1863. Prior to that statute the Revised Statutes (2 R. S. 135, § 2). required that in certain cases every agreement should be void unless such agreement or some-note or memorandum thereof “expressing the consideration” be in Writing and subscribed by the party to be charged therewith. ■ In 1863 the law was amended by the chapter referred to which left out the clause “expressing the consideration,” and that clause was also omitted when the statute was revised in section 21 of the Personal Property Law (Laws of 1897, chap. 417). The courts have since held that the agreement or memorandum thereof was not complete without the expression of a consideration and, therefore, that the omission of those words from the statute as amended created no change in the law. (See Drake v. Seaman, 97 N. Y. 230.) In the amendment referred to the omission of those words constituted the only amendment made, while by' chapter 680 of the Laws of 1905 there are numerous amendments made to the general law. The omission might, therefore, well have been made through inadvertence. In such case the amendment would be without the significance claimed for it by the appellant upon this argument. Our attention is just called to a decision of the Appellate Division, first department (Matter of Lawson, 109 App. Div. 195), in which, the same conclusion is reached though by a divided court.

The order of August twelfth, therefore, is affirmed, without costs. The order of July eighth appealed from is-affirmed, with ten dollars costs and disbursements.

All concurred.

Order of August twelfth affirmed, without costs. Order of July eighth affirmed, with ten dollars costs and disbursement's.