
    George Merritt, as Administrator with the Will Annexed of Joshua Weeks, Deceased, Appellant, v. John Merritt, as Administrator with the Will Annexed of John J. Merritt, Deceased, Respondent, Impleaded with Mary Ann Weeks and Others, Appellants.
    
      Notice of an intention to terminate a reference — what establishes, at the time, an existing reference.
    
    Where all the parties in interest sign a request to a referee to amend his report, and an order is entered returning the report to the referee to make a supplemental.report on the question of costs, an existing operative reference at that date is thereby admitted as regards the service of a notice of an intention to terminate the reference, under section 1019 of the Code of Civil Procedure, because the report has not been filed or delivered within sixty days.
    
      Appeal by the plaintiff and by the defendants, Mary Ann Weelts and othersj judgment creditors, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of April, 1891, vacating and setting aside a judgment in their favor, entered in said clerk’s office on the 19th day of March, 1891, upon the report of a referee, and vacating and setting aside said referee?s report.
    
      John R. Kuhn, for the appellants.
    
      Re B. Wilmot, for the respondent..
   Goodrich, P. J.:

This action was commenced in 1819, and shortly after the issue a referee was appointed to.state the accounts between the estate represented by the plaintiff and the estate represented by the defendant. After two or three sessions the trial was virtually abandoned and no proceedings were taken until 1895, when a new order óf reference was made authorizing the referee to hear and determine all issues. The testimony was closed and. the referee signed his ’ report on September 10, 1896, when the parties were informed of that fact and copies of the report were delivered to them.; but for some reason the original report was not tiled until February 23, 1891.

After the signing of the report, Mr. Kuhn made a motion, for an allowance of costs; an order was made on October 2.1, 1896, which was of such a character that the parties consented to and entered an order to return the report to the referee to. make a supplementary report on the question of costs, and the attorneys united in signing a request to the referee to amend his report so as to máke the costs of all parties payable by defendant Merritt out of the estate of Joshua Weeks. This, it will be observed, was much less than sixty days after the signing of the report by the referee and consequently admits an operative reference at that date. The attorneys differed before the • referee as to the intention of the stipulation and, on December 22, 1896, the defendant John Merritt, as administrator, served notice of. his intention to terminate the reference, pursuant to section 1019 of the Code of Civil Procedure, which provides that 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 thé cause is finally submitted, and that 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 which case the action must thenceforth proceed as if the reference had not been directed.

On February 23, 1897, the referee delivered both of his reports, and the said reports were on the same day filed with the clerk. On March 19, 1897, the judgment was entered. A motion was made-by the defendant Merritt to vacate the judgment, upon which, on April 26, 1897, an order was entered vacating the report of the-referee and the judgment thereon, and from this order the present appeal is taken.

The learned justice treated the signing of the report as ending-the entire authority of the referee, but I think this authority was revived by the order for a supplementary report, and that the parties-by their acts waived the strict requirement of section 1019, as to the: original report, when, on October twenty-first, they obtained the-order sending the case back to the referee, and made their request: of him to make a further report that the costs of all parties should be paid out of the funds of the estate. After that date proceedings before the referee seem to have been tacitly suspended, but-there is no evidence that the matter of the supplementary report was then or at any subsequent time finally submitted to the referee-for his decision so as to set the sixty- days running. Consequently the notice of the termination of the reference was not authorized..

It is evident that there has been a large expenditure of time and professional services on the reference, and that large expenses have-been incurred thereby. No objections have been made to the findings of the referee in the main report or that injustice was done by an entry of judgment upon the merits. The application to set: aside the judgment was based upon a technical point of practice: which we hold not to be well founded; and under these cireum- ■ stances we should be inclined to disregard it, unless it be jurisdictional, and sustain the judgment to.the end that a litigation may be speedily terminated,' which, if continued, will result in a further depletion of the estate and increase of costs and expenses in a case where the costs have already amounted to over $9,000.

The order appealed from should be reversed and respondent’s, motion to vacate the judgment denied.

All concurred.

Order reversed and motion denied, with ten dollars costs and disbursements.  