79 F. 817 | 2d Cir. | 1897
The action was at law for damages on breach of contract. On January 16, 1890, the parties stipulated that “a jury trial be and is waived herein, and the whole issues referred” to a counsel named therein, “as sole referee to hear, try, and determine,” with the usual clause required by the rule, that judgment should not be entered until 10 days after notice of the filing of the report. An order of reference was entered on this stipulation January 18, 1890. The testimony having been taken, argument was had, briefs filed, and the case finally submitted for the consideration of the referee September 21, 1891. No report having been made by the referee, defendants on April 20, 1893, served notice on plaintiff that they elected to terminate the reference. The New York Code of Civil Procedure (section 1019) provides that, upon the trial by a referee of an issue of fact or an issue of law, “the referee’s written report must be either filed with the clerk, or delivered to the attorney for one of the parties, within sixty days from the time when the cause or matter is finally submitted, otherwise either party may before it is filed or delivered, serve a notice upon the attorney for the adverse party, that he elects to end the reference. In such a cas.e the action must thenceforth proceed as if the reference had not been directed, and the ref-ex*ee is not entitled to any fees.” Two years afterwards, on May 16, 1895, plaintiff moved to strike out defendants’ notice ending the reference, which motion came on for argument June 4, 1895. The circuit court on June 11, 1895, expressed the opinion that such motion
The only question it is necessary to consider is as to the effect of the notice terminating the reference. Plaintiff’s counsel contends that such question cannot be examined upon this appeal, for the reason that the orders of the court below in relation to strildng out the report of the referee were not final, and that the judgment cannot be reviewed in this court; it having been entered upon the report of a referee to hear, try, and determine. There is no force in this objection. The cases cited on the brief go only to the extent of holding that the findings of a referee or arbitrator as to the facte, and his rulings as to the admission or exclusion of evidence, cannot be thus reviewed. Such cases expressly hold that, “in actions duly referred by rule of court to an arbitrator, only rulings and decisions in the matter of law after the return of the award are reviewable.” Bond v. Dustin, 112 U. S. 604, 5 Sup. Ct. 296. The decision of the circuit court upon the referee’s report and the notice of termination, which it had expressly reserved until the report was filed, may be considered a “ruling and decision in a matter of law arising after the return of the award.” The judgment entered thereon was final, and is, of course, reviewable in this court. It would be an absurd proposition to hold that such a judgment could not be reviewed if it appeared that there had never been any reference at all, or that the referee had never reported. And that is precisely the position of plaintiffs in error, who contend that after April 20, 1893, there was no referee or arbitrator, and that, therefore, there was before the circuit court no report or award “duly made.” The act of 1872 (now section 914, Rev. St.) provided that:
“The practice pleadings and forms, and mode of proceedings in civil causes, other than equity and admiralty causes, in the circuit and district courts must conform as near as may he to the practice, xfieadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held.”
Inasmuch as this statute does not provide for like conformity in proceedings to review judgments of those courts, great embarrassment results to the defeated party where a referee appointed by consent, in conformity to the state code of procedure, has made his re