6 A.D.2d 903 | N.Y. App. Div. | 1958
In an action to enjoin picketing and similar union activities, the appeal is from so much of an order as (a) fails to grant a motion to vacate a temporary injunction order (see Rayex Corp. v. Sanchez, 6 A D 2d 904), (b) refers the said motion to vacate and a motion to punish appellants for contempt for violating said injunction order, to an Official Referee to hear and determine, and (c) directs the Official Referee to determine whether violations of the temporary injunction order occurred subsequent to the institution of the contempt proceedings. Order modified so as to provide that the reference be to hear and report, instead of to hear and determine, and by limiting the scope of the Official Referee’s inquiry to alleged violations of the temporary injunction order as specified in the order to show cause dated March 8, 1957 and the supporting affidavit. As so modified, order insofar as appealed from affirmed, without costs. The learned Special Term lacked jurisdiction to order a reference “to hear and determine”. Without the consent of both parties, the reference could only have been to hear and report (Newcomb v. Newcomb, 281 App. Div. 689; Cameron v. Cameron, 2 A D 2d 979). The right to appeal from the order of reference was not waived by the participation of appellants in the hearings before the Official Referee (Read v. Lozin, 31 Hun 286, appeal