
    James N. Butterly, Appellant, v. James A. Deering, Respondent.
    Second Department,
    July 25, 1913.
    Reference — consent in open court — order reversing judgment of referee, without provision as to method of new trial — authority of court to order trial of separate issues by jury, under section 967 of the Code of Civil Procedure.
    Where, on a motion for the appointment of a referee to hear and determine the issues, counsel consent in open court to an order of reference, and an order reversing a judgment of the referee in favor of the plaintiff is silent as to the method of a new trial, the court is without power to grant a motion by the plaintiff under section 967 of the Code of Civil Procedure, for a trial by jury of part of the issues.
    
      Appeal by the plaintiff, James N. Butterly, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 26th day of December, 1912, denying plaintiff’s motion for a trial by jury of one of the issues.
    
      George W. Wingate [Frank Moss with him on the brief], for the appellant.
    
      William N. Dykman [James A. Deering with him on the brief], for the respondent.
   Carr, J.:

In this action the plaintiff moved for the appointment of a referee to hear and determine the issues. On the return day of the motion the defendant appeared in court by counsel, who in open court consented to an order of reference. The court thereupon granted the motion, and appointed a referee to hear and determine the issues. After a trial before the referee .judgment was entered in favor of the plaintiff. This judgment was reversed in this court and a new trial granted, a majority of the court being of opinion that the judgment was against the weight of evidence. (Butterly v. Deering, 152 App. Div. 777.) The order of reversal was silent as to the method of the new trial. The plaintiff thereupon made a motion under section 967 of the Code of Civil Procedure for a trial before a jury of the separate issue as to whether the contract alleged in the complaint as having been made between the plaintiff and defendant, and upon which the plaintiff bases his right of recovery, was in fact made, and reserving the trial as to question of performance, which necessarily involved the examination of a long account. This motion was denied and the plaintiff has appealed. If section 1011 of the Code of Civil Procedure applies, then the order was made properly, as the court was without power to grant the motion. (Brown v. Root Manufacturing Co., 148 N. Y. 294; Brooklyn Heights R. R. Co. v. Brooklyn City R. R. Co., 105 App. Div. 88.) It is true that in this case there was not a written stipulation for a reference signed by the respective counsel, but a consent made in open court has been held equivalent to the written stipulation referred to in section 1011 of the Code of Civil Procedure. (Knowlton v. Atkins, 134 N. Y. 313; Lennon v. Smith, 18 N. Y. Supp. 213.) We do not feel at liberty to disregard the authorities just cited, and, therefore, we affirm the order appealed from, with ten dollars costs and disbursements, on the distinct ground that the court was without power to grant the motion, and not on the ground of discretion.

Jenks, P. J., Burr, Rich and Stapleton, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  