
    Ann E. Crumbie, Respondent, v. The Manhattan Railway Company, Appellant.
    
      1Evidence talcen on an unauthorized interlocutory reference — cannot be read upon the trial if objected to — what is not a waiver of the objection.
    
    When, upon the trial of an action, one of the parties thereto seeks to read evidence which has been taken before a referee in a manner not provided by law, the adverse party, although he has appeared and participated in such examination before the referee, has the right to object to its introduction, and the overruling of an objection thus taken is erroneous.
    Appeal by the defendant, The Manhattan Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of July, 1891, upon the report of a referee.
    The issues in this action came on for trial eá¡ a Special Term of the Supreme Court, held at the city of New York, at which, after certain evidence had been offered by the plaintiff and received, “the' court at this juncture suspended the trial of this case and announced that an interlocutory order of reference would be entered by the court of its own motion herein, to a referee to be named by the court.
    “Defendant’s counsel asks to have the right reserved to defendant to offer any proof relating to the title of these premises, mortgages or incumbrances, at a subsequent stage of the case, as he is not possessed of information on that subject at present.
    
      “ The Court: I will refer the question of incumbrances on the premises to the same referee, so th§,t if you wish you may offer it before him.”
    An order was then entered referring the case to the referee “ to take testimony as to the amount of damage, if any, suffered by the plaintiff by reason of the maintenance and operation by the defendant of its elevated railway in front of the plaintiff’s premises, and to report the same to the court with his opinion thereon, and also to take testimony and report with his opinion thereon as to the value of the plaintiff’s property taken or appropriated by defendant for the maintenance and operation of its railway in front of said premises.”
    It was further ordered, “ that upon the filing of said report in the office of the clerk of this court, either party may apply to the court upon eight days’ notice for the continuation and closing of the trial of the above-entitled action and for judgment therein.”
    Under said interlocutory order of reference proceedings were had and witnesses were examined before the referee named therein.
    Subsequent to said proceedings before said referee, the latter made and filed his report and findings on the l'Tfch day of June, 1893, which 23urported to constitute an award or decision in favor of the plaintiff. Plaintiff thereafter moved under the foregoing order of reference for the continuation and closing of the trial of this action, and for judgment therein. Said motion was granted by ■fche fudge before whom it was made, and pursuant to such direction this case came on for a continuation of the trial on the 26th day of October, 1893, and the following proceedings were had thereupon:
    Plaintiff’s counsel offered the evidence taken before the referee and rested.
    Counsel for defendant objected to the admission of said record or testimony in evidence upon fche ground that it was incompetent and hearsay, and ujion the further ground that the order oí reference under which it is taken is void, and upon the further ground that the admission of said record or testimony taken under said order of reference would deprive the defendant of its constitutional right to have the testimony taken in equity eases in the same manner as in actions at law.
    The court overruled the objection, and counsel for defendant duly excepted.
    Counsel for defendant then moved the court to dismiss the complaint upon the ground that the plaintiff had failed to prove facta sufficient to constitute a cause of action against the defendant.
    The court denied the motion, and counsel for the defendant duly excepted.
    
      Julien T. Davies and A. O. Townsend, for the appellant.
    
      H. G. Atwater, for the respondent.
   Per Curiam :

It now seems to be well settled that the court should not make such an order of reference as was made in this case. Upon the trial the defendant had the right to take the objection that the evidence sought to be introduced had not been taken according to law.

Suppose a party participates in a de bene esse examination, unless the evidence is certified to the court according to law such evidence cannot be used upon a trial. The party does not waive these statutory requisites by appearance upon the taking of the testimony. So, in the case at bar, when it was sought to read upon the trial the evidence whicli had been taken in a manner not provided by law, the appellant had a right to object to its introduction, and the •overruling of such objection was error.

The judgment appealed irom must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Present — Van Brunt, P. J., Parker and Pollett, JJ.

Judgment reversed, new trial ordered, costs to appellant to abide •event.  