| N.Y. Sup. Ct. | May 15, 1853
The question presented in this case, and upon which the decision of the motion must turn, is whether, in a case where the issue has been referred to a referee to hear and determine, it is competent for the defendant to notice the action for trial, and bring the same to a hearing before the referee.
Both parties noticed the cause for trial, and if the defendant had the right to do so, he was, manifestly, as much in default as the plaintiff, in not bringing on the hearing; and consequently has no right to ask for costs against the plaintiff, {see rule 20 of August, 1852.) That the referee would not have allowed him to bring it on, does not change the principle, as the plaintiff is not responsible for the erroneous opinion of the referee.
The Code has made no express provision on this subject. By section 256, either party may give notice of trial. This however, I think, was intended primarily to refer to trial by jury, or by the court; because, in the same section, and in immedia1¡e connection with the provision, it is declared that “ the party giving the notice shall furnish the clerk, at least four days before the court, with a note of the issue,” &c., and that “ the clerk shall thereupon enter the cause upon the Calendar,” &c. This can hardly be understood as applying to the case of a trial before a referee,—where no note of issue was ever heard of, and where there is no clerk or Calendar—and so of section 258, which “is a part of chap. Ill, of Tit. VIII, of part 2d, entitled, “ Trial by jury,” authorizing either party giving notice to bring the issue to trial, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, to proceed with his case and take a dismissal of the complaint, or a verdict or judgment as the case may require. This clearly has no reference to a trial before a referee.