47 N.Y.S. 735 | N.Y. Sup. Ct. | 1897
This motion is made to punish the defendant Richardson for contempt in not obeying the order of the referee to file an account. The reference is under an interlocutory judgment to take and state the account of the defendant Richardson, who is
It is true that the powers of a referee are regulated by statute, but it is not correct to say that all of those powers are distinctly specified in the-statutes. The Supreme Court has the jurisEction and powers vested in it at the time of the adoption of the Code of Civil Procedure according t|o the practice of the court, except as otherwise prescribed. Code Civ. Pro., § 4.
It is the successor of the former Court of Chancery whose course, practice and jurisdiction were the growth of centuries. .The scope of the jurisdiction of the Supreme Court is distinctly recognized by the present rules of practice of the Supreme Court, and the proceedings therein shall be according to the customary practice as it formerly existed in the Court of Chancery, where not otherr wise provided by statute or rules. Rule 84, Supreme Court.
By the 102d and 107th rules of the Court of Chancery the master in chancery had the power, under a reference to take testimony and state the accounts, to regulate the manner in which the reference was to be executed, and to require the parties within a reasonable time to exhibit in writing before him the . several items of charge which they claim against the adverse party, so that it might be known to what points the examination of the witnesses should be dEected. Story v. Brown, 4 Paige, 112-115.
. Under the present system the referee takes the place of the master in chancery with the same powers, unless otherwise specially prescribed, and, therefore, has the same jurisEction in executing the duties imposed upon him. An .order of this court to take and state an account gives him the incidental power formerly exercised
Second. I do not decide whether he had the power to punish for disobedience of his direction although legal reasoning might justify it. The solution of that question is unnecessary. It is quite certain that this court has .not lost its jurisdiction to punish by- way of contempt any party for disobedience to its lawful mandate and still has.concurrent jurisdiction in that respect with the referee, assuming that he also had the power. This has been decided by the late General Term of this department, even in the case of a reference to hear and determine. Naylor v. Naylor, 32 Hun, 228.
But, from the view I have-of this case, so far as I am able to discover from the papers presented upon this motion, it is not necessary to exercise the power to punish at the present time what-"' ever may appear to be its necessity in the future. The referee may not only require the exhibit in writing of the items of account, but he may also preclude the parties from making claims for any other items than those which they present, unless they furnish reasonable excuse for the neglect. Story v. Brown, supra.
I do not see why in the course of the investigation before the referee proof may not be elicited of the gross amount received by the assignee,- by the production of his books or his personal testimony, or by other proof, and, if he fails to present the detailed items of the charges tending to diminish that amount in his own exoneration, the report of the referee may not exclude from consideration such items of charges as to Which he fails.to present a detailed account. This power of the referee is inherent, and is also fortified by the presumptions arising as to the conduct of a trustee who refuses to disclose in the proper way material evidence as to the exact state of an account. The motion, therefore, is in form
Ordered accordingly.