
    
      Ex parte Rutter.
    Referees may adjourn for a reasonable time on their own motion, without the consent of parties; and the only limitation in the statute in relation to such adjourn, mente is, that they shall “ be necessary.”
    
    Of this necessity the referees are to judge; though the court may enquire into the matter for the purpose of seeing that the power is not exercised oppressively, and that no unreasonable delay takes place. Per Bronson, J.
    Such adjournments, though they extend the hearing beyond the next term, will not put an end to the authority of the referees.
    Otherwise of an adjournment beyond the term, if granted on motion of one of the parties, without the consent of the other.
    If a party to a reference desire a postponement beyond a term, his proper course is to apply to the court.
    Where an adjournment of a reference is proposed beyond a term, which one of the parties intends to avail himself of, if granted, as irregular, he should object in such manner as to apprise the referees of his intention; and if he do not, but merely say he cannot consent, he will be precluded from taking (he objection af. terwards. Semble.
    
    On motion for a mandamus or prohibition, the only question made by the counsel was, on the power of referees to adjourn the hearing of a cause pending before them.. John Osgood was plaintiff and the relator was defendant in an action pending in the New-York C. P., which was referred to three referees. The first meeting of the referees was on the 17th day of February, 1842, which was in the January term of the court. After examining one witness, the referees, on the defendant’s motion, adjourned the hearing to the24th of February. On that day only two of the referees attended, and a new notice was given for the 7th of March. Upon the last mentioned day, after examining two witnesses, the referees, on the defendant’s motion, adjourned to the 15th of March, when the defendant again applied for an adjournment, which was granted on payment of costs, to the 18th day of March, being the last day but one of the February term. On that day the referees met and continued the examination of the plaintiff’s witnesses until near midnight, and then adjourned to the 24th of March. This adjournment, which went beyond the term¿ was not asked for by the plaintiff, and the defendant made no objection, though he ¿aid he could not consent to it. On the 24th, the plaintiff’s evidence was closed, the defendant not attending. The referees then adjourned to the 29th of March, to give the defendant an opportunity to produce his witnesses, on the supposition that he might have forgotten the day and for that reason had not attended on the 24th. Notice in writing was given to the defendant for the meeting of the 29th, but he did not attend, and the referees soon afterwards made their report for the plaintiff. The defendant moved to set aside the report for irregularity, which motion was denied by the C. P.
    J. Holmes, for the relator,
    said that the referees, by several successive adjournments, had postponed the hearing from the time of their first meeting tó a day'beyond the then next February term of the C. P.; by which means they had lost all jurisdiction of the cause, atid the report made in the February vacation was utterly void. This point was decided in Jackson v. Ives, (22 Wend. 637.)
    
      
      J. S. Bosworth opposed the motion.
   By the Court, Bronson, J.

It is a mistake to suppose this question was decided in Jackson v. Ives. In that case the referees, on the application of one party, which was opposed by the other, adjourned or postponed the hearing from the 10th of April beyond the then next May term of the court • and it was remarked that this u exceeded the power expressly conferred on the referees” by the statute. But what was the effect of this and other alleged u irregularities, if they must be deemed such,” was purposely left undecided. There is no intimation in the case that the referees lost all jurisdiction of the cause. That question remains to be decided.

This is a most ungracious motion on the part of the relator. He asked for adjournments as often as the referees met, down to the last day but one before the end of the term, and when the referees then proposed, on their own motion, to adjourn for six days, he made no objection. He only said he could not consent. But as soon as the term had gone by, he refused to appear, and moved to set aside the report on account of the delay which had for the most part been granted as a favor to him. I am strongly inclined to the opinion that the adjournment from the 18th to the 24th of March, which went beyond the term, should be regarded as having been made with the assent of both parties. It is true, the defendant said he could not consent, but he made no objection. When the referees proposed the adjournment, if the defendant did not approve of it, he should in fairness and candor have told the referees that he denied their power to adjourn beyond the term, and that he intended to rely on the objection. If this may be regarded as an adjournment with the consent of both parties, I see no reason for holding that the referees lost the power of afterwards proceeding in the cause, whatever may be the true construction of the statute.

But it is not necessary to put the case upon the ground of consent. The statute provides that the referees u shall proceed with diligence to hear and determine the matter in controversy.” (2 R. S. 384, § 42.) “ They shall appoint a time and place for the hearing and shall adjourn the same from time to time as may be necessary; and on the application of either party, and for good cause, they may postpone such hearing to a time not extending beyond the next term of the court in which the case is pending.” (§ 43.) It will be seen that the section provides for delays of two kinds. First, the referees, after appointing a time and place for the hearing, “ shall adjourn the same from time to time as may be necessary.” This includes all those adjournments which are usually made by the referees on their own motion, such as the necessary adjournments from day to day during the progress of the hearing, and adjournments for a longer period where such a course is required by the convenience of the referees. There are many cases where the hearing cannot be completed in one day, and it must sometimes happen that one or more of the referees will be prevented by sickness, family afflictions or the calls of urgent business, from continuing the investigation from day to day, to a conclusion. In such cases the referees may adjourn for a reasonable time on their own motion, and without the consent of the parties, or either of them. The only limitation in the statute in relation to such adjournments is, that they shall be sucl as may be necessary.” Of that necessity the referees must, from the nature of the case, be the judges. The court may, however, enquire into the matter, and see that the referees do not act oppressively, and that the parties are not delayed for an unreasonable time. But such adjournments, although they may extend the hearing beyond the next term after it was com menced, can never have the effect of putting an end to the authority of the referees.

The last branch of the section provides for those delays which may be granted on motion of one of the parties ; and here there is a different limitation of the power of the referees from that which has been considered. u On the application of either party, and for good cause, they [the referees] may postpone such hearing to a time not extending beyond the ,ne^t term of the court in which the suit is pending.” If the referees on the application of one party, and without the consent of the other, postpone the hearing over an entire term, their powers will be at an end, and they cannot again, move in the matter without the consent of parties, or some new,order by the court. Where such a postponement is necessary, as may sometimes be the case, application must be made to the court. (See Sudam v. Swart, 20 John. R. 476 ; Graham v. Morton, 6 Wend. 552.)

In this case, all the postponements down to the last day but one of the next term after the hearing commenced, were granted on the application of the relator, and whether they were right or wrong, he cannot complain. The next adjournment from the 18th to the 24th of March, which went beyond the term, was not granted on the application of the plaintiff, but was ordered by the referees on their own motion and for their own convenience; and such an adjournment, as we have already seen, is within the power of the referees, although it may carry the hearing beyond the term. The defendant, does not complain that the adjournment was unnecessary. He insists that it was irregular and without authority. In that he is mistaken.

The fact that we have examined this question upon its merits, must not be taken as an admission, even by implication, that we could have awarded either a.mandamus.or a prohibition if we, had arrived at a different conclusion. That question was not made by counsel, and has, not been, considered.

Motion denied.  