
    Louisa S. Adams, Resp't, v. Anthony N. Brady, Adm'r, App'lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February 15, 1893.)
    
    Decedent’s estates—Reference.
    A consent to a reference of a claim against a decedent’s estate is. a waiver of a trial by jury, and after a reference by consent the proceeding may be treated in the same manner as a case in which the court could direct a reference without consent, and upon setting aside the report of the referee the court may appoint a new one in his place.
    Appeal from order setting aside the report of a referee and granting a new trial before a new referee appointed thereby.
    Reference of a disputed claim against an estate.
    
      Reilly & Hamilton {Andrew Hamilton, of counsel), for app’lt;
    
      Alden Chester, for resp’t.
   Putnam, J.

J.—Plaintiff having presented a claim against the estate of James N. Brady, deceased, which was rejected by defendant, as administrator of the deceased, served on the latter a written offer to refer said claim pursuant to the statute. The offer being accepted by defendant and the parties, by another writing, having agreed on a reference to John T. Cook, and the surrogate of Albany county having duly approved of said referee, on filing said agreement to refer and the approval of the surrogate in the county clerk’s office of said county, an order entitled in the supreme court, referring the matter, as to said •claim, to said Cook, was entered.

The cause was afterwards tried before said referee, who found in favor of the claimant. A motion made by plaintiff at special term to confirm said report, and for judgment in favor of plaintiff, with costs, was denied, and the report set aside, on the ground that the referee had improperly stricken out evidence received on the trial, after the final submission of the case. The referee was discharged and a new trial granted before Hon. William L. Learned, who, by said order, was appointed sole referee to hear and determine the matter in controversy between said parties. Defendant objected to the appointment of a new referee, ánd gave notice that he elected to end the reference and claimed a jury trial. It is now claimed by appellant that that portion of the order appointing a new referee is unauthorized. That the «ease is one where the plaintiff is entitled to a trial by jury, and that by consenting to a reference to a particular referee he did not waive his right to a jury trial, said reference having fallen through.. Preston v. Morrow et al., 66 N. Y., 452.

The general term of this district in Masten v. Budington, 18 Hun, 105, determined that the doctrine laid down in Preston v. Morrow et al. does not apply where there is a reference under the statute by consent on a claim against a deceased party, and that such consent is a waiver of a trial by jury. In the case last cited the provisions of 2 R. S., 89, §§ 36 and 37 (which remain in force), are considered, and the court held that after a controversy as to a claim against a deceased party had been referred, by consent, pursuant to the above quoted provisions of the Revised Statutes, it may be treated in the same manner as a case in which the court could direct a reference without consent That said § 37 of the statute provides that upon setting aside the report of a referee another referee may be appointed by the court in place. See 2 R. S., 89, §§ 36, 37; 3 Rumsey’s Prac., 298; Roe v. Boyle et al., 81 N. Y. at page 308.

I think we are concluded by the decision of the general term of this district in Masten v. Budingion, which seems decisive of the question under consideration, and hence that the order should be affirmed, with costs.

Mayhaii, P. J., and Herrick, J., concur.  