
    Josephine Corbett, Respondent, v. Peter C. Fleming and Others, Appellants, Impleaded with John H. Hainhorst and Others.
    First Department,
    November 19, 1909.
    Trial — stipulation that issues in partition shall be tried by referee — estoppel—formality of interlocutory judgment.
    Issues of fact in an action for partition are triable as of right before a jury, but the parties may consent to a trial before the court or referee.
    Where the plaintiff, after the defendant’s default in an action for partition, obtained the usual order of reference as to title, liens, etc., and thereafter by stipulation allowed the defendant to answer and appear before the referee, the appearance to he without prejudice to previous proceedings, the effect of the stipulation was to authorize the referee to hear and determine the action. His report stands for the decision of the court and is a sufficient basis for the entry of an interlocutory judgment.
    The plaintiff not having appealed from the interlocutory judgment entered on such report, .and having permitted the sale to take place, and consented to tke entry of final judgment, reserving only a right to appeal therefrom and from the order overruling the exceptions to the referee’s report and appealing only from the latter, cannot complain that there was no decision of the court supporting the interlocutory judgment.
    Appeal by the defendants, Peter C. Fleming and others, from an order of the Supreme Court, made at the New York Special Terin and entered in the office of the clerk of the county of New York on the 28th day of July, 1909, granting the plaintiffs motion to vacate an order, interlocutory judgment and final judgment previously made in the action.
    
      Frederick B. Campbell, for the appellants.
    
      Irving Paine, for the respondent.
   Scott, J.:

I think that this order should be reversed. If there was any irregularity in the proceedings, the plaintiff who now asks to vacate them was directly and primarily responsible. The action is in partition. The defendants defaulted and the plaintiff applied for and obtained the usual order of reference as to title, liens, etc. (Code Civ. Proc. § 1545 ; General Pules of Practice, rule 66.) After all the proofs had been taken before the referee the defendants appellants were permitted to appear and answer, the stipulation allowing them to do so providing that such appearance should be without prejudice to previous proceedings. Issues of fact in an action for partition are triable, as of right, before a jury (Code Civ. Proc. § 1544), but it is competent for the parties to consent to a trial before the court or before a referee. When issues had been raised in the present case, by the service of answers, either party might have stood upon his strict legal right and insisted upon a jury trial. They elected not to do this, but stipulated to proceed before the referee who had already been appointed, for this was the effect of the stipulation that the appearance of appellants’ should be without prejudice to previous proceedings, which included the appointment of a referee. This in effect transformed the reference from one to take proof into one to hear and determine, for by consenting to go on before the referee, after issues had been raised, the parties by necessary implication submitted the issues to the determination of the referee. His report stated the facts found by him and his conclusions of law separately, as such a report should do, and, although perhaps slightly informal, conformed in all essential particulars to the requirements of section 1022 of the Code of Civil Procedure. I see no reason why this report did not stand for the decision of the court and furnish a sufficient basis for the entry of the interlocutory judgment.' It was so treated by the court and all the parties. If plaintiff deemed herself entitled to a trial before the court and a formal decision by it, she should have raised the question then or by appeal from the interlocutory judgment. She did neither, but permitted the sale to go on and consented to entry of final judgment, qualifying her consent only by the stipulation that it should not affect her right to appeal therefrom, or from the order overruling the exceptions to the referee’s report. She contented herself with appealing from the order overruling the exceptions to the referee’s report, an appeal which was necessarily futile, because the report was not one to which exceptions would lie. (Winfield v. Stacom, 40 App. Div. 95.) If the plaintiff had appealed from the interlocutory judgment she could have raised the question that it was unsupported by any decision of the court, and would have been successful (Levine v. Goldsmith, 71 App. Div. 204) unless it had been held, for the reasons above stated, that the parties had in effect by their action transformed the reference on title into a reference to hear and determine. That the plaintiff’s attorney did not in fact enter the interlocutory judgment is unimportant. He neither objected to its entry nor appealed from it, nor made a timely motion to vacate it. On the contrary, he recognized its regularity and, without objection upon the score of irregularity, permitted a final judgment to be entered and a sale to be had under which a purchaser has acquired rights. In my opinion it is too late for plaintiff to attack either the interlocutory or the final judgment. It follows that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, Laughlin, Clarke and Houghton, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.  