
    The Mercantile National Bank of the City of New York, Respondent, v. Henry B. Sire, Appellant.
    
      Delivery of his report by a referee in ignorance that the defendant’s lime to• fie a brief had been extended by stipulation — the case should be sent back to the referee.
    
    At the close of the evidence introduced on the trial of an action before a referee, a stipulation was entered into that the attorney for the defendant might have a certain time within which to file a brief with the referee. The referee, without knowledge of the stipulation, which had not been called to his attention, filed his report prior to the expiration of the time allowed by the stipulation for the filing of the defendant’s brief. Two days later, and also before the expiration of the time specified in the stipulation, the attorneys for the plaintiff entered judgment upon the report with knowledge, that the defendant had not filed his brief and that he desired to do so. The defendant subsequently filed his brief within the time prescribed therefor by the stipulation.
    
      Held, that the case should be sent back to the referee to examine the record and make a report after considering the defendant’s brief.
    Appeal by the defendant, Henry B. Sire, 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 16tli day of November, 1904, denying the defendant’s motion to vacate a judgment in favor of the plaintiff theretofore entered upon the report of a referee, and to have the case sent back to the referee for the purpose of receiving the defendant’s brief and for ' re-examination. .
    
      Franklin Bien, for the appellant.
    
      Albert S. Ridley, for the respondent.
   Laughlin, J.:

After the close of the evidence on August 26,1903, the attorneys for the plaintiff stipulated in writing that the attorney for the defendant might have until the 7th of October, 1904, within which - to deliver his brief to the referee to whom the issues were referred to hear, try and determine. This stipulation was not brought' to the attention of the' referee, who signed and filed his report on the twenty-sixth day of September. -Two days later, the attorneys for the plaintiff, with knowledge that the referee had not received the brief of the attorney for the defendant and that the latter desired to submit a brief, entered judgment upon the report and served, notice of entry and notice of retaxation of costs.

The consent of the referee should have been obtained for the= extension of time to file the brief, and the referee was not at fault, in making and filing his report, but it is evident that the defendant has been deprived of his day in court. Although this was principally owing to the neglect of his attorney to consult the referen with reference to the extension, yet the plaintiff should not b.e permitted to take advantage of. the failure of the attorney for the-defendant to inform the referee and obtain his approval. of • tlieextension of time to file the brief. We are of opinion, therefore,, that the case should have been referred back to- the referee to-examine the record and make a report after considering the brief of the defendant, which was in fact filed within the time prescribed therefor by the stipulation. ■

It follows that the order should be reversed, with ten dollars costs and disbursements of the appeal to abide the event, and motion granted to the extent of referring the case back to the referee with directions to receive and consider the defendant’s brief and make a. new report, without costs of the motion to either party.

Yak Brunt,, P. J., Patterson, O’Brien and Hatch, JJ.,. concurred.

Order reversed, with ten dollars costs and disbursements to abide-event, and motion granted to extent stated in opinion, without costs.  