
    William A. Brady, Respondent, v. James C. Kennedy and Patrick T. Powers, Appellants, Impleaded with Amos G. Batchelder.
    
      B&feree — Ms resignation must be to the court and not to a justice thereof—fire days notice of an application for a new referee.
    
    The resignation of a referee, appointed by the Supreme Court to take proof of certain facts and make a report thereon to the court, must be addressed to the court and not to one of the justices thereof; an application for the appointment of a new referee must also be addressed to the court, and must, under rule 37 of the General Rules of Practice, be made on five days’ notice.
    Appeal by the defendants, James G. Kennedy and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 1st day of August, 1901, appointing a referee in the place and stead of the original referee, resigned.
    
      
      (Jharles Haldane, for the appellants.
    
      Dmid Gerber, for the respondent.
   McLaughlin, J.:

In this action a referee was appointed to take proof of certain facts and make a report thereon to the court. He took the oath required (Code Civ. Proc. § 1016) and entered upon the discharge of his duties, but before proceeding to take testimony as to the matters referred to him, he suggested that the respective attorneys enter into a stipulation increasing his fees beyond those allowed by statute. This the attorney for the defendants refused to do, whereupon the referee adjourned the hearing, and thereafter, and before the adjourned day, he forwarded to the learned justice who presided at Special Term when the order appointing him was made, a letter to the effect that he resigned his position as referee. Upon this letter the plaintiff thereafter served notice that he would, two days later, apply not to the court, but to Hon. Henry Bisohoff, Jr., one of the justices thereof, for an order naming and appointing a referee in place of the one theretofore appointed, who had resigned. The motion was opposed by the defendants upon the ground, among others, that there . /as no authority for making a motion of this character upon two days’ notice. The motion was granted and defendants have appealed.

The original appointment of a referee was by the court, and he was by it directed to make a report to the court and not to a justice of it. Had he made a report it would have been directed to the court, and his resignation, therefore, should have been addressed to the court. He having been appointed by the court, another referee to take his place could only be appointed by the same authority. The notice of motion was that the plaintiff would apply not to the court, but to one of the justices of it. But if the notice of motion-could be treated as a notice of motion returnable at Special Term, then it was ineffectual for that purpose, inasmuch as the defendants were entitled to five days’ notice. (General Rules of Practice, rule 37.) There is no authority for making a motion of this kind at Special Term upon two days’ notice. The defendants opposed the granting of the order upon this ground, among others, and them objection in this respect should have been sustained and the application denied.

The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs, with leave, however, to the respondent to renew his application.

Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, with leave to respondent to renew.  