
    Anne Minott Mitchell, Individually and as Administratrix, etc., of Isabella H. Mitchell, Deceased, Respondent, v. The Village of White Plains, Appellant.
    
      Reference — when a stipulation, is once made a reference to another referee, may he ordered when a new trial is granted—power of the General Term to vacate the, reference. - ' ■
    Where the parties to an action hy written stipulation, signed by their attorneys and filed with the clerk, .consent to refer it, and an order of reference is entered,' the case tried-and a judgment entered, which is reversed on an appeal and a new trial ordered, the .plaintiff may properly move for, and the .court has power, under section 1011 of the Code of Civil Procedure to make an appointment of a new referee.
    Such section of the Code is not limited in its, application to cases in which there has been a failure to enter a proper judgment on a referee’s report or in’which the. report is set aside because of his misconduct.
    Where the original order of reference is not vacated by the General Term an application t for the appointment of a new referee may' be made at Special Term, and é-h order so made is in effect a reversal of .the original order of reference.. . The fact that the plaintiff making such application is not the Saíne person as the original plaintiff is immaterial.
    
      Qucere,, whether the appellate court had power to vacate the- order of reference and thus make the action triable by the court below;,
    .Appeal by the defendant, The Village of White Flams, from an order of the Supreme Court, made at the. Dutchess Special Term, and entered in the "office of the clerk of the county of Westchester on the 29-th day of June, 1896, appointing a referee to- hear and determine the issues in me action..
    
      H. T. Dyhman, for the appellant.
    . William P. Fiero, for the responden
   Bradley, J.:

The action was.not referable- in the first instance without the consent of the. parties.. They, by written stipulation, signed by their-attorneys and filed with the clerk, did consent to refer it to Joseph S; Wood, and an order was therein granted and entered accordingly. The trial before such referee resulted in a report and judgment, in favor of the "plaintiff:.. On appeal taken by the defendant, to the General Term the judgment was reversed and a ■ new trial granted. In the meantime the original plaintiff had died and the action was continued in the name of the present plaintiff, who, after the new trial was granted, moved the court for the appointment of another referee. The motion was opposed by the defendant and granted by the court. It is now urged that it was not within the power of the court to grant such motion. This depends upon the statute which provides for reference upon consent of parties, manifested by written stipulation, signed by their- attorneys and tiled with the clerk, and that, “ if the referee named in the stipulation refuses to serve, or if a new trial of an action tried by a referee so- named is granted, the court must appoint another referee,, unless the stipulation expressly provides otherwise.” (Code Civ. Proe.. § 1011.)

. The order made on the motion to refer after the new trial was granted, seems to come within the terms of that statute—which terms, in their purport, are imperative— that the court, in such case, appoint another referee, unless there is some limitation to the contrary expressed in the stipulation hot contained in that made in this action. (Hustis v. Aldridge, 144 N. Y. 508.) It is contended on- the part of the defendant that such provision of the statute is applicable only where there is a failure to enter a proper judgment on the referee’s report, or it is set aside by reason of his misconduct. The statute is not entitled to, nor can it reasonably have, so limited a construction, without disregard of its terms, as clearly expressed.

The order appointing the-first referee was not vacated by that of the General Term reversing the-judgment and granting a new trial, but the omission there to direct the new trial before another referee was no reason why application could not. be effectually made for such purpose at Special Term, and without the necessity of application to the General Term for a modification of its order in this respect. And the effect of the order appealed from was the vacation of the order appointing the referee, by whom the trial was had. It is no answer to the right of one of the parties to seek the appointment of another referee, that they may have consented to proceed to the new trial before the same referee, and the failure of either party to move for the appointment of another referee might be treated as such consent-. (Catlin et al. v. The Adirondack Co., 81 N. Y. 379.)

In the cited case of Maicas v. Leony (113 N. Y. 619) the trial of the issues referred was not completed, and the findings of the referee, upon which the interlocutory judgment was entered ex parte, were imperfect, and for that reason such judgment and report were set aside. The court held that the case should not be sent to another referee, but that the uncompleted trial should be continued before the same referee, as there was no charge of misconduct on his part. That case does not support the asserted view of the learned counsel for the defendant.

There is no occasion, upon the facts presented, for the consideration of the question whether the court can vacate the order of reference appealed from, and thus make the action triable by the" court only. It is sufficient to say that the exercise of such power is quite questionable, against the protest of one of the parties, without causes not appearing in this case. The fact that the party plaintiff is other than the one by whom the action was originally commenced, and who was such when the stipulation to refer was made, is not available to the defendant. The action is the same, and the present plaintiff moved for the order appealed from. .The case of Wood v. Swift (81 N. Y. 31) has no essential application to the question presented here.

The order should be affirmed.

All concurred.

Order affirmed, with ten dollars costs and disbursements.  