
    Ernest J. Lecocq, Resp’t, v. Auguste Pottier, Ex’r, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 20, 1892.)
    
    Reference—Refusal of befebee to pboceed.
    As a claim against a decedent’s estate can only be referred by consent, on a refusal by the referee to proceed the parties are relegated to their original status, and have the right to consent to a new referee or be beard by a jury. In such a case, on motion to dismiss for want- of prosecution, the court has no power, against the wish of some of the parties, to vacate the former order of reference, appoint a new referee and direct that on the hearing the .proofs and testimony taken before the former referee shall be received and considered as if taken before the referee so appointed.
    Appeal from order denying motion to dismiss the proceedings for want of prosecution, and appointing Wm, P. Prentice as referee in the place of John M. Bowers, the former referee, who had declined to act further in the matter.
    
      B. T. Kissam, for app’lt; Brownell & Lathrop, for intervening legatees, app’lts; E. Huerstd, for resp’t.
   O'Brien, J.

This proceeding arises out of a claim made against an estate, which was referred to a referee. Upon failure to proceed with the reference a motion was made to dismiss, which was granted. Subsequently the claimant moved to open the default, which was allowed upon terms. . Upon the ground of the claimant’s failure to proceed with the reference as required by the order opening the default, a second motion was made to dismiss the proceedings, and upon such motion an order was made “denying said motion, and referring this proceeding to William P. Prentice, as referee, in place and stead of John M. Bowers, who has declined further to act; the referee, Prentice, to proceed to the hearing and determination -of this proceeding with all convenient speed, and that the proofs and testimony heretofore taken before the said John M. Bowers shall be considered and received on the hearing and trial before said referee,Prentice, with the same force, virtue and effect as if they had originally been taken before him herein, and that all evidence heretofore taken in this matter stand and be received by the said referee, Prentice, in the trial to be had on this proceeding before him.” This appeal is taken from the foregoing order.

The excuse offered for failure to proceed was that the referee declined to act; and it was, no doubt, as the result of this statement, contained in the opposing affidavits, that the judge proceeded to appoint another referee, and gave the further directions contained in the order appealed from. We think, however, that in this the learned judge exceeded his power. The motion before him was one to dismiss the proceeding for failure to prosecute, and this, we think, should either have been granted or denied. This would have left the parties in such position that if, as a matter of fact, the referee declined to proceed, either party could have moved to discharge the referee, and for the substitution of another in his place.

It must be remembered that in cases of this kind a referee can only be appointed by "consent of parties; and the case of Emmet v. Bowers, 23 How., 300, supports the view that where a referee so appointed refuses to proceed, the parties are relegated to their original status, and have the right to consent to a new referee or be heard by a jury. The case of Masten v. Budington, 18 Hun, 105, holds that where, upon appeal to the general term from a judgment entered upon the report of a referee appointed to determine the validity of a claim against the estate of a deceased person, the judgment is set aside and the order of reference vacated, the court at special term has power to refer the case to a new^ referee to hear and determine. In this proceeding, however, no motion was regularly made to vacate, nor was the order of reference vacated; but upon a motion to dismiss for want of prosecution, upon an intimation that the referee appointed by consent of the parties had declined to act, the court, of its own motion, vacated the order of reference, and appointed a new referee, not only without the consent, but in direct opposition to the wishes of certain of the parties to the proceeding. This, as we have said, we do not think the court had power to do; nor can we find any sanction for the direction in the order “ that the proofs and testimony heretofore taken ” before the referee “ shall be considered and received on the hearing ” before the new referee. In Maicas v. Leony, 113 N. Y., 621; 22 St. Rep., 149, the court, in commenting upon a similar direction in an order, says: “ The provision in the order that the evidence already taken may, by consent of both parties, be read before the new referee, does not give the defendant all he is entitled to and secure all his substantial rights. The plaintiff may withhold his consent, and then his evidence cannot be read, and the new referee will not have the benefit of seeing and hearing the witnesses.” The direction in this order is more objectionable than the one commented upon in the case above referred to, for the reason that it was inserted, not only against the consent, but in opposition to the defendants’ wishes. We think, therefore, that the order appealed from should be modified by striking all provisions therefrom except that which denied the motion to dismiss, and, as so modified, the order should be affirmed, without costs.

Vak Brunt, P. J., concurs.  