
    SUPREME COURT —SPECIAL TERM.
    Roderick Morrison agt. Lydia Lawrence and Isaac Lawrence.
    
      Oode of Oivil Procedure, section 1019 — Rights of referees — What is a sufficient compliance with the provisions of section 1019 as to delivery of report— When the sixty days begin to ran — Power of referee to enlarge time for submission of briefs.
    
    The sixty days in which a referee must make his report do not commence to run until the cause is submitted.
    Where briefs are to be submitted there is no submission of the cause until the time to hand in the briefs is passed.
    The referee has power to enlarge the time for the submission of briefs.
    Having his report ready and tendering it on payment of his fees, within the sixty days, is sufficient. (See to same effect decision by general term, first department, Little agt. Tjynch, 1 Pbw. [W <S.], 95.)
    
      Special, Term, June, 1885.
    
      Motion by plaintiff to set aside the report of a referee and to vacate the judgment entered thereon on the grounds that the report was not filed within the time prescribed by section 1019 of the Code.
    The testimony closed before the referee February 13, 1885, and at that time the counsel for the parties agreed to submit the case on written briefs, to be handed in within twenty days; before the expiration of the twenty days the defendants’ attorney obtained from the referee an extension of the time to the middle of March, and on the thirteenth March he mailed his brief to the referee, which was received by him on the next day. On the twentieth day of April the referee notified the defendants’ attorney that his report in favor of the defendants was ready for delivery on the payment of his fees. The defendants’ attorney not having taken up the report, the plaintiff’s attorney, on the eleventh day of May, served notice discontinuing the reference. On the twenty-fifth of May the defendants’ attorney took up the report and served copy of the same on plaintiff’s attorney on the next day, and afterward entered judgment,
    
      Joseph Merritt, for plaintiff.
    
      James L. Stewart, for defendant.
   Westbrook, J.

The motion presents a close question, but I shall hold:

First. That the sixty days do not commence to run until the cause is submitted.

Second. When briefs are to be submitted there is no submission of the cases until the time to hand in briefs is passed.

Third. That the referee has power to enlarge the time for the submission of briefs, as he would have the power to postpone the argument of the cause beyond the day fixed, if the cause was to be submitted on oral argument. This is an inherent right or power of the referee, and unless his discretion in this particular is abused, the court will not interfere with his action.

Fourth. Having the report ready and tendering it, on payment of his fees, within the sixty days is sufficient (Little agt. Lynch, 34 Hum, 396; Geib agt. Topping, 83 N. Y., 46). These decisions are contrary to Phillips agt. Carman (23 Hun, 160), but they are more recent. It is true the latter case was affirmed by the court of appeals (84 N. Y, 650), but the affirmance may have been on some other ground (see 34 Hun, 400); and indeed we must so suppose, for in the case above cited from 83 New York, 46, the same court expressly decided contrary to it.

Motion denied, without costs. The defendants must stipulate to enable plaintiff to review the judgment.  