
    Michael Lennon, Pl’ff, v. Mary F. C. Smith et al., Def'ts.
    
      (New York Common Pleas, Special Term,
    
    
      Filed March 15, 1892.)
    
    Reference—Consent.
    The consent of parties in open court to a reference has the effect of a written stipulation to refer, and will remain operative, so far as the mode of trial is concerned, until the cause is finally disposed of. Where a judgment entered upon the referee’s report in such a case has been reversed and a new trial granted, a new referee must be.appointed on the application of either of the parties.
    Motion to place the cause upon the equity calendar of this court for trial. The opinion states the facts.
    
      Isaac Kugelman (Edward T. Wood, of counsel), for the motion; Matthews & Smith, opposed.
   Giegerich, J.

—This action was brought to foreclose a mechanic’s lien, and by consent of the parties in open court it was sent to a referee for trial. The cause was tried before the referee agreed upon, who reported in favor of the defendant Smith, and judgment was entered in her favor. The plaintiff appealed from that judgment, and the general term affirmed it. An appeal from the judgment entered upon the order affirming the judgment entered on the report of the referee was then taken to the court of appeals, and the judgment was reversed and a new trial ordered, without specification or reservation as to the mode of trial.

The plaintiff now moves to place the cause upon the equity calendar of this court for trial, and this raises the question whether the simple reversal of the judgment on the report of a referee operates to vacate the order of reference. In Catlin v. Adirondack Co., 19 Hun, 389; 81 N. Y., 379, which arose prior to the amendment of 1879 to § 1011 of the Code of Civil Procedure, it was held that it stands, unless provision is made to the contrary or the order is vacated upon motion by the court at special term. But § 1011 of the Code of Civil Procedure, as amended, provides that where the referee was appointed by consent, and a new tidal is granted, the court must appoint another referee, unless the stipulation expressly provides otherwise. Carter v. Wallace, 3 How., N. S., 354.

In the case at bar the consent to refer was made in open court, and it, therefore, has the same force and effect as if made in writing. Waterman v. Waterman, 37 How., 36; Leaycroft v. Fowler, 7 id., 259; Keator v. Ulster & Del. Plank Road, Co., 7 id., 41; 2 Rumsey’s Practice, 342.

It is not claimed that the stipulation made between the parties and embodied in the order of reference contains any provision that the court shall not appoint another referee in case a new trial is granted, and if the aforesaid provisions of the Code are applicable to this case, and I assume that they do apply, it follows that a new referee must be appointed upon application by either of the parties to the suit.

Previous to the amendment of the section of the Code above cited, it was and still is regarded as the established practice whenever the judgment is reversed on a question of fact upon which a referee has once passed, to grant a motion to send the retrial to a new referee, Rumsey’s Practice, 383; Catlin v. Adirondack Co., 19 Hun, 389, and if the judgment of the referee is reversed on a question of law, it is not necessarily a ground for sending the case to a new referee upon a new trial, Billings v. Vanderbrek, 15 How., 295, except where the reference is by consent, although it is usual in such case to direct that the new trial be had before another referee, and that seems to be the better practice. 2 Rumsey’s Practice, 383; Schermerhorn v. Van Alen, 13 How., 82.

The judgment of the referee, it seems, was reversed on a question of fact as well as of law, and if these rules of practice were followed, this cause would be sent to a new referee for re-trial, even though the original reference were treated as one noton consent. But, under the authorities above cited, I am of opinion that the consent, given in open court and embodied in the original order, must be construed as the equivalent of a written stipulation to refer within the meaning of § 1011 of the Code. Considering the phraseology of such section as a whole, the intention is manifest that a stipulation to refer once given shall remain operative, ■so far ¡¿- prescribing the mode of trial is concerned, until the cause is finally disposed of. It binds the parties to trial by referee instead of by the court or a jury. This is clear from the direction that the court must appoint another referee in the event of- the ordering of a new trial of an action which had been tried by the referee original!y named.

For the reasons above stated, the motion will, therefore, be denied, but without costs, and without prejudice to any motion to be made by either of the parties for the appointment of another' referea  