
    Charles C. Dickinson, as Assignee of Eugene M. Earle, Individually, for the Benefit of Creditors, and as Assignee of Eugene M. Earle and William Pitt Earle, as Copartners, for the Benefit of Creditors, Respondent, v. Eugene M. Earle, William Pitt Earle and May S. Earle, Appellants.
    
      Practice — stipulation for a reference in the first judicial department •—• where the order of reference should he made—practice where an accounting in the Supreme ■ Gourt is suhstitxited for one under the Assignment Act — notice of trial.
    
    Where a cause in the first judicial department has been placed on the Special Term calendar, Part 3, for trial, and by stipulation between the attorneys it has been agreed that it shall be referred, the attorneys to have five days to agree upon a referee, and if they do not then agree a referee to be appointed by the court, the better practice is to have the order of reference made by the same judge who presided in Part 3, where the case regularly came on for trial and was marked referred; but it is not fatal to such an order that, the attorneys not having agreed, an order to show cause was obtained, returnable at Part 1, to have some suitable person appointed a referee, and that on the return day it was sent in to Part 6 of the Special Term where it was heard and disposed of by the appointment of a referee. Van Brunt, P. J., dissented.
    Where an accounting in the Supreme Court is substituted for one under the Assignment Act, it is proper that the same rules provided by that act for advertising for claims and notice to creditors should be observed in the Supreme Court.
    In case there is an issue to be tried fourteen days’ notice of trial of such issue must be given.
    Appeal by the defendants, Eugene M. Earle and others, from an -order of the Supreme Court, made at the New York Special Term ■and entered in the office of the clerk of the county of New York •on the 27tli day of May, 1898, referring the action to a referee to hear, try and determine all the issues therein.
    
      Elbert CrandeTl, for the appellants.
    
      II. I). Luce, for the respondent.
   O’Brien, J.:

This action was brought to obtain a judicial settlement of the accounts of the plaintiff as assignee for the benefit of creditors. After answers, the cause was on the Special Term calendar, Part 3, for trial, and by stipulation between the attorneys it was agreed that it should be referred, the attorneys to have five days to agree upon a referee, and if they did not then agree, a referee was to be appointed by the court. The attorneys, not having agreed, an order to showcanse was obtained, returnable at Part 1, to have some suitable person appointed as referee, and on the return day it was sent in to Part 6 of the Special Term, where it was heard and disposed of by the appointment of a referee.

The main question here is one of practice, the insistence being' that as the case had been before the judge in Part 3, he was the only one who could make the order. The stipulation of the attorneys required that the order should be made by the court, and while seemingly the better practice is to have the order of reference made by the same judge who presided in the part wdiere the case regularly came on for trial and was marked referred, this was not fatal to the order. The stipulation in terms did not provide for an appointment by any particular judge, but provided that in case of disagreement the appointment should be made by the court, which was finally done. Some of the objections to the form of the order should be sustained. Where an accounting in the Supreme Court is substituted for one under the Assignment Act, it is proper that the same rules providing for advertising for claims and notice to creditors should be followed, The provision that the hearing could be brought on upon eight days’ notice is improper for the reason that, there being an issue to be tried, the Code provides for fourteen days’ notice of trial of such an issue.

The further recital in the order that notice of such first hearing shall be given to the defendants or their attorneys, “ which notice shall be deemed sufficient for the reason that the defendant May S. Earle claims to own by assignment all of the claims against the said assigned estate,” etc., should be stricken out. This is a mere assertion of a claim, and is one of the matters to be disposed of upon a reference.

The order should be modified accordingly by striking out the ' provisions referred to, without costs.

Patterson, Ingraham ana McLaughlin, JJ., concurred; Van Brunt, P. J., dissented.

Van Brunt, P. J. (dissenting):

I dissent. The order for reference should have been made by the justice befere whom the case came on the calendar.

Order modified by striking out the provisions referred to in opinion, and as modified affirmed, without costs.  