
    GEORGE W. METCALF, Plaintiff and Respondent, v. JOSIAH H. BAKER, Defendant and Appellant.
    It is the duty of a referee to be always present during the examination of the witnesses, as it also is, at all other times, during the progress of the trial of a cause "referred to him to hear, try and determine.
    But when a referee absents himself without objection, and with the tacit consent of the parties, it is too late to object afterwards, on a motion to set aside the report of the referee for this cause.
    If the objection had been taken at the time, and had been overruled or disregarded by the referee, the court would be compelled to set aside his report. •
    But if no objection is made at the time, and the parties go on with the examination of the witnessess and with the trial, and finally submit the case and all the evidence to the referee for his decision, they must be deemed to have waived the right to object after-wards, for it must be presumed that no referee would allow a reference trial to proceed during his absence against The objection of any party to the action.
    Before Monell and Spencer, JJ.
    
      Decided December 31, 1871.
    Appeal from a judgment entered upon the report of a referee, and also from an order denying a motion to set aside the report for irregularity.
    The action was- to recover damages for personal injury, and was referred to a referee, to “hear and determine the same, and that he report to this court with all convenient speed.”
    The complaint alleged that the injury was caused by the negligence of defendant’s servant, in driving the defendant’s horse and wagon into the carriage of the plaintiff.
    A motion to dismiss the complaint on the several grounds : 1. Of plaintiff’s concurring negligence. 2. That the action should have been against the defendant’s servant; and, 3. That the plaintiff’s servant was liable; was denied.
    The referee found as a fact, that the defendant’s servant, while engaged in the defendant’s business, did violently and negligently drive the defendant’s wagon against the carriage in which the plaintiff was seated, with great force and violence, and throwing the plaintiff from his carriage upon the pavements with great forcé and violence, inflicting upon him great bodily injury. And the referee awarded the plaintiff damages, in the sum of sixteen hundred dollars.
    The defendant excepted.
    On the motion to set aside the report of the referee, it was alleged, and substantially admitted, that the evidence, or the major part of it, was iaTcen in the absence of the referee, he being present merely to swear the witnesses. But all the evidence was submitted to ■ him for his decision.
    
      Mr. Henry C. Denison and Mr. A. J. Reavey, for appellant.
    
      Brown & Estes, for respondent.
   By the Court.—Monell, J.

There is no foundation for the objection, that the judgment was irregularly entered, without the fiat of a judge of the court. The reference was to hear and determine all the issues, and the referee took the place of the court. Upon filing his decision, it was the duty of the clerk to enter the judgment (Code, § 272 ; Griffing v. State, 5 How. Pr. 105).

There was no proof in the case that the act of the defendant’s driver was willful. The finding of the referee that the defendant’s wagon was driven violently against the plaintiff’s carriage, if it could be understood to mean a willful driving, would be unsupported by the evidence. But the finding was merely, that the driving was with force, and the question whether a master is liable for the wilful act of his servant does not arise.

There was no proof of any concurring negligence of the plaintiff. Dr. Belknap was driving the vehicle from which the plaintiff was thrown; and whatever negligence might have been imputed to him, none could be to the plaintiff. Therefore, even though there was concurring negligence of the defendant’s driver and Dr. Belknap, the action could be maintained against the defendant alone (Colegrove v. N. Y. and H. R. R. Co., 6 Duer, 382; S. C., 20 N. Y. 492).

Upon the whole case, I think the referee was authorized to find that the plaintiff’s injury was caused by the negligence of the defendant’s driver; and with propriety he might have further found, that the driving was reckless, and in utter disregard of the safety of those who were upon the highway at the time. The thoroughfare was crowded with vehicles returning from the park, and the. defendant’s driver, regardless of their safety, recklessly attempting to cross the avenue at a rapid rate of speed, ran into and upset the carriage in which the plaintiff was riding.

The damages were not excessive and only a fair remuneration for the pain and suffering of, and loss to the plaintiff. I cannot find that exemplary damages were allowed. Had there been, it would have been error. But the damages were discretionary, and the amount shows no abuse of the discretionary power.

The judgment should be affirmed.

The motion to set aside the report of the referee was properly denied.

The ground of the motion was, that the referee was not present when the witnesses were examined.

As an abstract question, I am of opinion, that it is the duty of a referee to be always present during the examination of the witnesses, as it is, at all other times, during the progress of the trial. But when a referee absents himself without objection, and with the tacit consent of the parties, it is too late to afterwards object. Should the objection be taken at the time, and be overruled or disregarded by the referee, the court would be obliged to set aside his report. But if no objection is made at the time, and the parties go on with the examination of the witnesses, and finally submit all the evidence to the referee for his decision, they must be deemed to have waived the right to afterwards object. For it is but fair to presume that no referee would allow a reference to proceed in his absence against the objection of the party.

In this case it does not appear that any objection was made, or any notice taken at the trial of the referee’ s absence. It cannot be done now.

The order should be affirmed, with costs.  