Oppenheimer v. Trebla Realty Co.

134 N.Y.S. 1095 | N.Y. App. Term. | 1912

Gerard, J.

This is an appeal by defendants from a judgment in favor of plaintiff entered"on the report of a referee. The defendants raised the point that the City Court had no jurisdiction to make the order of reference and raised this point at the outset of the reference. This order was in the following form, omitting the caption:

“ This action, having regularly come on for trial before the Hon. Peter 'Schmuek, Justice, on the 24th -day of April, 1911, and the following having occurred:

“ Defendant’s Counsel: Counsel for the defendant has offered that there be an accounting between the parties to this action in the manner provided by law and that the amount, if any, due to the plaintiff from any of the defendants be then ascertained and determined and that the collateral be properly applied and that a proper judgment be rendered in the .circumstances.

“ Plaintiff’s Counsel: We will accept the stipulation.

“ It is hereby ordered that Philip J. Dunn, Esq., be and he hereby is appointed Referee under the said stipulation.” It is contended by plaintiff that an examination of the testimony taken before the referee shows that an 'accounting was not in fact had, but that in fact the reference was one to hear and determine the issues in an action at law; but, if the City Court had no jurisdiction to make the order, this defect cannot be cured or even the intention of the parties ascertained from after occurring events. The order on its face is not ambiguous. The City Court has no jurisdiction to direct the taking -of an equitable account and the question of jurisdiction is one which may be raised at any time and even though the order was entered on consent. Dudley v. Mayhew, 3 N. Y. 9. I am also of opinion that the determination of the referee required the exercise of eqúitable powers.

' It follows that the judgment based on this order must be reversed.

Seaburt and Guv, JJ., concur.

Judgment reversed, with costs to appellants.