125 N.Y.S. 761 | N.Y. App. Div. | 1910
■ Defendants appeal from an order of reference, and also separately from an order denying'a motion to vacate such order of reference. The action is to foreclose a mechanic’s lien. The answer is- that the contractor did not perform his contract. The bill of particulars states thirty-seven different items of departure from the contract and failure to secure the certificate of due performance by the architect. By consent the- issues were referred, but the time of the referee to file his report having expired, pursuant to section 1019 of the Code of Civil Procedure the defendants terminated the reference. On ¡March 5, 1910* Mr. Justice Garretson denied a motion to refer again the issues to the same person as referee. The case was restored to the calendar for trial, and ón June 21, 1910, upon call of the case, Mr. J us.tice Marean referred the issues to the same referee, and the order therefor, entered. June twenty-third, recites that “counsel for the defendants, having answered that he was- not ready for the trial, and having stated to the court' that this action involved various items in dispute, and that on a previous trial more than five hundred pages of testimony were taken, and that the trial
Without considering the question whether compulsory reference of .the issues could be ordered, it appears that the order of Mr. Justice G-arretson was an adjudication of the. question, and it was not within the power of the trial judge to order the reference while the earlier order denying it was in force. For this reason the order of reference should be vacated, with ten dollars costs and disbursements. The order made by Mr. Justice'Rapper should be affirmed, without costs, as the defendants’ relief was by an appeal from the order of reference, and not by motion to vacate it.
Woodward, Burr, Bioh and Cárr, JJ.,' concurred.
In action Ho.' 1 order granting motion for reference reversed, with ten dollars costs and disbursements.
In action Ho. 2 order affirmed, without costs.
