
    Robert Berls, Pl’ff, v. The Metropolitan Elevated R. R. Co. et al., Def'ts.
    
      (New York Common Pleas, Chambers,
    
    
      Filed April, 1891.)
    
    , Reference—Submission after death of one of several referees.
    Where one of several referees appointed by consent dies after the testimony has been closed and the case submitted, and thereafter a stipulation is entered into authorizing the surviving referees to render a decision and sign the report, this constitutes a new submission to them, and the time limited by the Code for the filing of the report or the delivery thereof to the attorney runs from the time of such new submission.
    Motion to vacate referees’ report.
    
      Peckham & Tyler, for pl’ff; Davies, Short & Townsend, for def’ts.
   Bookstaver, J.

The issues in this action were referred to Messrs. Andrew H. Green, Dwight H. Olmstead and Edward C. Donnelly, by order entered on stipulation. The action was tried in November, 1890, and on the 1st of December the referees fixed the 15th of that month for the submission of briefs and findings and they were submitted about that day. Before the referees had ■come to any determination, and on the 4th of January, 1891, Mr. Donnelly died. Thereafter, and on the 4th of February, 1891, the following stipulation was entered into between the parties:

Robert Berls v. The Metropolitan Elevated R. R. Co. et al.
Edward C. Donnelly, one of the referees appointed herein to determine the issues in this action, having died, it is hereby stipulated, by and between the parties to this action, that the surviving referees may render a decision and- sign findings and a report herein, which shall have the same force and effect in all respects as if the same had been rendered and signed by the three referees originally appointed herein.
Dated New York, January 7, 1891.

On February 20th the referees sent a written decision to the .attorneys of both parties as follows:

Robert Berls v. The Metropolitan Elevated R. R. Co. et al.
The evidence in this action, in our opinion, not entitling the plaintiff to the relief demanded in the complaint, is dismissed on the merits, with costs.
Dated February 20, 1891.
To Messrs. Davies, Short & Townsend, defendants’ attorneys, and Messrs. Beckham & Tyler, plaintiff’s attorneys.
(Signed.) Andrew H. Green.
Dwight H.. Olmstead.

Immediately on the reception of this decision, but not before, plaintiff’s attorneys served a notice upon the referees and defendants’ attorneys that they elected to regard the reference at an end, because the case was not decided within sixty days from December 15, 1890.

The question presented for determination under this state of facts is whether the sixty days should' be computed from the 15th of December, 1890, or from the 4th of February, 1891, when the final submission was made and filed with the referees. Section 1091 of the Code provides that “ upon the trial by the referee of an issue of law, or where a reference is made as prescribed in § 1015 of this act, the referee’s written report must be either filed with the clerk or delivered to the attorney for one of the parties within sixty days from the time when the case or matter is finally submitted; otherwise either party may, before it is filed or delivered, serve a notice upon the attorneys for the adverse party that he elects to end the reference. In such a case, the action must thenceforth proceed as if the reference had not been directed, and the referee is not entitled to any fees."

In this case the reference was not compulsory, but was made upon the written stipulation of the parties, selecting three referees by name to hear and determine the issues. The consent was predicated upon the expectation that the three referees would hear proofs and would all participate in the decision. Mr. Donnelly died before any determination whatever was arrived at. His. death, on the 4th of January, 1891, ipso facto, vacated and terminated the original reference, Devlin v. The Mayor, 62 How., 164, where Hon. Charles P.Daly, then chief judge of this court, said: “ Where a cause is referred by consent of parties, and a referee dies, it puts an end to the reference, because the extent of the consent is that the cause may be tried and decided by the particular person whom they have agreed upon as referee.” See, also, Emmet v. Bowers, 23 How., 300; Townsend v. The Glens Falls Ins. Co., 33 Supr. Ct., 130.

In this case, instead of one, three referees were agreed upon, and it was intended that all should participate in the decision. It is-not like the case of a board of public officers, where a majority may act. The reference having terminated, of course the surviving referees could have done ' nothing thereafter which would be binding upon the parties.

I think, therefore, that the stipulation of February 4, 1891, was in legal effect a new submission of the case ■ to the surviving referees, and that the cause was not finally submitted until that time. I cannot agree with the plaintiff’s contention that the stipulation related back to the time of the first submission, because, if it did that merely, it could not have revived that which had been terminated by the death of Mr. Donnelly. It cannot operate backwards. Besides, it would be unreasonable to presume that the parties to the stipulation contemplated, when the same was filed with the referees on the 4th of February, that a decision must be rendered within nine days from that date, because if the final submission was on the loth of December, the sixty days would, have expired on the 13th of February.

But there is another view to take of this case. It is clear that, between the death of Mr. Donnelly and the filing of the final submission, the surviving referees could not have acted in any way. The month which intervened between his death and the filing of the stipulation ought not to be regarded in computing the sixty days. Therefore, the notice to terminate the reference was prematurely given.

Then, too, if plaintiff’s contention is sound, he did not promptly avail himself of his right to terminate the reference, but waited until after the decision had been announced, and I do not think that he should, under the circumstances, be allowed to avail himself of a technical irregularity, if there was one, nor to have two chances to try his action, especially where it is not claimed that the decision of the referees as made is not in accordance with the facts and the law of the case.

The motion will, therefore, be denied, with ten dollars costs.  