Lead Opinion

McLennan, P. J.:

The provision of fhe Constitution which it is claimed disqualified Mr. Justice Rich from holding the court and making the order, of reference in question, is as follows: “ Mo justice of the Appellate Division Shall exercise any of the powers of a justice of the Supreme Court, other than those of a justice out of court, and those pertaining to the-Appellate Division or to the hearing und- decision .¡of motions submitted by consent of counsel.” (Const, art. 6, § 2.).

The same provision is contained in section 220 of the Code of Civil Procedure.. While the language employed does not leave the meaning of the provision entirely free from doubt, we are constrained to hold that it was not the intention of the framers, of the Constitution to permit- a justice of the Appellate Division to hold ^a court for the hearing of motions,'or to exercise any of. the powers, of-a justice of the Supreme Court, other than those which may be exercised by a •justice at chambers, and those pertaining to the Appellate .Court of which he is a member. Any other interpretation would enable an appellate judge to hold a term for the hearing, of. motions.and to-dispose of all business which might come before him, unless the- attorney for either party objected to the jurisdiction of- the judge or refused to consent to his acting in any case. We think it was not intended that an attorney might be called upon in open court .to consent or decline to consent that a judge might act in any particular motion noticed for a. regular term of court. We . are . also of opinion that the parties could not. by consent confer jurisdiction upon Mr. Justice Rich to hear the motion or make the .order of reference in question. (Oakley v. Aspinwall, 3 N. Y. 547.)

- But assuming that the order -of reference was invalid for the reasons indicated, it does not follow that the 'report of the. referee and the" judgment entered thereon should be set aside-. . There. is no equity in the position taken by the plaintiff. A .referee satisfactory to it'was named, selected by the respective counsel. Knowing all the facts, it proceeded with the trial to- a...conclusion,.submitted its rights for decision, and, after having- a' decision rendered against it, Seeks to obtain another chance of success otherwise: than by appeal. ‘ , . •

We conclude that the order of reference was á nullity because of the disqualification of the justice and that such disqualification was *453not waived by the consent of the parties that he should act. The parties, therefore, are in the position of having gone to trial before a referee- selected by them without an order of reference having in fact been made and entered, but both parties assuming, as we must presume, in good faith that a valid order of reference had been made and entered; and the question is presented whether such defect, mistake or omission may now be corrected and the trial and judgment saved.

We think sections 721, 722,723 and 724 of the Code of Civil Procedure are sufficiently broad to authorize this court to make and direct the entry of an order of reference nunc pro txmc. In the case of Bonner v. McPhail (31 Barb. 106) it was said by Lott, P. J., that while a referee must be appointed by an order of the court, and that to evidence such appointment some action of the court, shown by its records, was necessary, an order of reference made mmcpro tunc “ was proper to perfect the record in the action and to- obviate any objections that might be made by either party to the acts and decision of the referee ” who had heard and decided the case without such order having been made.

In Scudder v. Snow (29 How. Pr. 95), in an opinion written by Jiidge Morgan, it was said : “As no authozity is shown for the appointment of the referee, I think his report is inoperative, and. will not sustain the judgment founded upon it. If the plaintiffs attorney had appeared before the referee and a tz’ial had been had upon the merits, I should feel bound to grant an order allowing the defendant’s attorney to draw up and enter an order of inference nun'c fro tunc in pursuance of the decision of the court at special term.”

As we have seen, in this case the trial was entered upon and was continued until concluded, without objection, and final judgment Was rendered.

In the case of Katt v. Germania Fire Ins. Co. (26 Hun, 429) it ■was held that tinder section 721 of the Code of Civil. Procedure the failure of a referee to be sworn would not authorize the court to set aside the judgment entered upon his report.

In Eagan v. Moore (2 Civ. Proc. Rep. 300), under section 724 of the Code of Civil Procedure, it was held that the court had the power to allow the amendment' of an offer of judgment after the trial of an action nu/nc pro twic, as of the time when it was made; *454and the court said: “An examination of section 724 of the Code ' seems to lead to a conclusion that there is no step in an action or proceeding which, if imperfectly taken,- is not. the subject' of amendment.

. In Bliss v. Bliss (11 Civ. Proc. Rep. 94), which was an action for" divorce, it was “ Held, that an order was properly made upon the-coming in of the. referee’s report amending order of reference nunc pro tunc,'st> as to refer in terms the action and all its issues to such referee for hearing'and determination, and to report thereon.”

The foregoing and many other cases of similar import might be cited which, as it seems to -us, authorize-, this court to supply the defect and omission alleged in this case, rather than set aside, the report of the refereé made in good faith, the result of a trial conducted with consent of all the parties, and to vacate the judgment entered upon such report.

It is concluded that an order of reference should be made referring the issues to John M. Brainard, Esq., to hear, try and determine the'same, and that the same be entered as-of the 31st day of December,'1904, and that the order appealed from should be affirmed, . but without costs of this appeal.

Hash', J., concurred; Williams, J., concurred in result only; Spring, J., dissented in an opinion in which Hiscook, J., concurred.

Dissenting Opinion

Spring, J. (dissenting):

The petitioner is an incorporated cemetery.association and sought to acquire additional land of the defendant in pursuance of the Condemnation Law. (See Code Civ. Proc, § 3357 et seq.) An answer was interposed and the court, at a Special .Term presided oveyby a justice who had been designated to the Appellate Division, granted an order of reference appointing a referee-to hear, try and determine the issues raised' by the pleadings. The parties consented to the referee and the order was entered, a trial had and ■ a decision "rendered directing that the petition be dismissed, with costs, and judgment was entered accordingly. Subsequently the petitioner made this motion to vacate the order of reference and ^ the judgment, on the ground that the justice presiding was disqualified from sitting in Special Term by reason of his designation to the Appellate Division, and the motion was denied. v

*455I concur with the presiding justice that a justice of the Appellate Division is disqualified by section 2 of article 6 of our State Constitution from holding court, except in the Appellate Division, and that, consequently, the order of reference granted in this proceeding was a nullity. It is. attempted, however, to inject life into this void decision and judgment by entering an order of reference as of the date of the invalid order. I do not find any warrant for this method of validating the proceeding.

The procedure on the trial of issues under the Condemnation Law is found in section 3367 of the Code of Civil Procedure. This provides that the court shall try the issues raised by the petition' and answer, or “ it may order the same to be referred to a referee to hear and determine,” and judgment may be entered upon the decision of the referee the same as in am action. The proceeding is in court all thé time and the order of reference in this distinctly statutory proceeding must be granted by the court. The parties and the justice presiding realized this necessity and a court order was in form granted. The order was not, however, granted by a court, and, consequently, there was' no authority for the referee to act. The lawyer who tided the ease had no authority to administer an oath or to make a' decision, for there was no order of reference which was the essential badge of his authority.

It is contended that sections 721 to 724 inclusive of the Code of Civil Procedure are sufficiently comprehensive, to permit this court to grant an order nunc pro tunc. Section 721 enumerates with great particularity the defects or omissions which are cured by the verdict, or decision. They all pertain to irregularities or defects which are obviated by appearance. The subsequent sections vest the court with power to amend or supply the defects or omissions in the pleadings or to relieve a party from surprise or inadvertence, but they all pertain to corrections of an immaterial character.

The distinction here is that the order of reference is at the threshold .of the proceeding after issue and is the only warrant for the referee to act at all.

While the judgment should not be vacated unless we deem that course imperatively required, yet there is no occasion for any undue stretch of authority on our part. The defendant, who is an attorney *456of long practice and repute, was apprised of the constitutional disqualification of the justice presiding before the order "was granted. The question was presented and he elected to obtain and enter the order and take his chances. 'He is not surprised and there is no inadvertence. .....

The pith of the controversy is that an order of reference was granted which was of' no force whatever. It assumed to be a court order. It was not. It was'no order. Notwithstanding its invalidity the referee named in that void order has tribd the case, rendered his decision and judgment has been entered thereon. I think the whole proceeding is permeated' with the vice which vitiated the order and that it cannot now be'galvanized into life.

The judgment and order should be reversed, with costs and disbursements of this appeal, and the motion granted to the end that another application may be made at Special Term for a trial of the issues by the court or a referee as may seem advisable.

Hisco'ck, J., concurred.

Order affirmed, without costs of this appeal to either party, and -order directed to be entered upon this decision referring the issues herein to John M. Brainard, Esq., as referee to hear, try and deter-' mine the same, and that such order of reference be entered as of the 31st day of December, 1904, the date of the order of reference pursuant to which said referee tried, heard and determined the said issues.