
    EXCHANGE FIRE INS. CO. v. EARLY.
    
      N. Y. Common Pleas; Special Term,
    January, 1878.
    Judgment in Fobeclosube—Rbpebee’s Oath.—Code op Civil Pkoceduke, § 1016.
    
      It seems, that a referee to compute amount in foreclosure should take oath, unless the parties, being all of full age and competent, expressly waive it.
    
    In foreclosure, if there is an answer raising a material issue, the issue must be tried by the court or referred. On defendant’s failure to appear at trial plaintiff cannot proceed to judgment by default, and a reference to compute amount.
    Motion by an infant defendant for order directing a re-sale of the mortgaged premises on two grounds : 1. For irregularity in the judgment, in that the referee to whom it was referred “ to examine the plaintiff or his agent on oath, as 'to any payments which have been made for or on account of the bond and mortgage mentioned in the complaint; to take proof of the facts and circumstances stated in the complaint, and to compute the amount due,” did not take the oath prescribed by the Code (§ 1016); and, 3. For inadequacy of price upon the sale.
    There was an infant defendant whose answer raised no issue ; but the defendant Martin J. Early interposed an answer, which put in issue the material allegations of the complaint. He made default when the cause was called for trial, and thereupon the court made the above order of reference. The referee failed to take the oath prescribed by section 1016 of the Code of Civil Procedure. He reported all the facts in plaintiff’s favor, and the amount due, and judgment of foreclosure and sale was entered. Evidence as to adequacy of price was conflicting. »
    
      Wilber Shaw, attorney, for infant defendants, and for motion.
    
      C. W. Bennett, for plaintiff, opposed.
    
      
      
        Contra, McGowan v. Newman, p. 80 of this vol.
    
   J. F. Daly, J.

It appears to me that the chief irregularity in the proceedings is the disposition made of the answer of M. J. Early, which put in issue all the material averments of the complaint. That defendant did not appear at the trial, and the plaintiff was entitled to his inquest. The court did not dispose of the issues raised by the answer, for there was no trial, and there are no findings ; nor were the issues referred. The order of reference entered was such as is proper where there is no answer, or the general answer of an infant by its guardian (Rule 63; Code, §§ 1214, 1215, 1216). Where an issue is raised by the answer, it must be tried by the court, or the issue must be referred. There is no other way to dispose of it in actions not triable by jury {Code, §§ 1008-1013 both inclusive). The inquest must be taken by the court, if the defendant fails to appear at the trial ; if not so taken, the whole issue should be referred. In this case it seemed to be assumed that because the defendant answering failed to appear, the case stood in the same position as if no answer had been interposed,

This not being a case embraced within the provisions of rule 63, it is perhaps not necessary to decide whether, under the new code, the referee appointed pursuant to that rule must take the oath prescribed in section 1016. That section makes it imperative upon the referee to take the oath when he is appointed as prescribed in the previous sections 1008 to 1013, both inclusive. Section 1015 prescribes among others for a reference by the court where it is necessary for the information of the court, and this in terms covers the cases mentioned in rule 63. The references provided for in section 1015 are all exclusive of trials of issues, and the referee in every case is bound to take the oath unless it be expressly waived. Where there are infant defendants, or the defendants fail to appear, it cannot be waived.

The reference in the case before me, not being one contemplated by rule 63 (because of the answer of M. J. Early putting the averments of the complaint in issue) was, if properly ordered, so ordered in pursuance of section 1015, and the referee should have taken the prescribed oath.

The judgment, as well as the sale under it, must be set aside with the order of reference.  