
    DEVLIN v. MAYOR, ETC., OF NEW YORK.
    
      N. Y. Court of Appeals,
    
    
      June, 1891.
    I. Reference; report.] Trying a cause before a referee without objection, and moving for judgment on his report, waives the right to insist upon the setting aside of a report, made in conformity with the order of reference, on the ground that it did not conform with Code Civ. Pro., § 1022 , requiring a referee’s report to direct the judgment to be entered, in that it reserved the determination of the question as to the rights of the defendants between themselves. So held although the acts constituting the waiver were the acts of a counsel of a municipal corporation 
      . (See Special Term opinion.)
    
      
      2. The samei\ It seems that in such case a new reference will be directed, if necessary, to determine the questions undecided by the report presented. (Id.)
    3. The same.] Where the conclusions of law in a referee’s report specified the sum to which each of several parties were entitled to judgment, held a sufficient compliance with Code Civ. Pro., •§ 1022 , requiring the report to direct the judgment to be •entered, notwithstanding the report contained a final clause reserving the question as to whom the sums found due should be paid. (See General Term opinion.)
    Appeal from an order of the general term of the -court of common pleas of the city of New York affirming an order of the special term of that court denying .a motion to vacate and set aside a referee’s report.
    The action was brought by John B. Devlin, administrator of Charles Devlin, upon a contract made between the city of New York and one Andrew J. Hockley for cleaning the streets of the city. The intestate was interested in the contract as assignee. The defendants •other than the Mayor, etc., of the city óf New York claimed to be jointly -interested in the contract, but refused to join as plaintiffs.
    The original order of reference under which the present trial took place, made in November, 1876, reserved the question as to the sums that might be due from the city to the other defendants for further consideration. Subsequently there were various changes of referees on account of death or resignation, until finally the referee, whose report is now sought to be set aside, was appointed by the order of July, 1890. The first order of reference was not vacated, but remained in force. The second order directed the referee to “ hear, try and determine all the issues,” and also further provided as follows: “ And in case said referee shall decide that any money is due from the Mayor, Aldermen and Commonalty of the city of New York by reason of the matters set forth in the complaint in this action, that he also decide and determine to whom the same shall be paid and the right and interest of said plaintiff and other defendants respectively in and to the sum of money due from defendants the Mayor,” etc.
    Under these orders, the referee, after finding in his first conclusion of law that the contract was valid, made the following conclusions of law:—Second, that upon the facts as found herein there is due from the Mayor, Aldermen and Commonalty of the city of New York by reason of the matters set forth in the complaint.
    I. —For and on account of work, labor and services performed under said contract not paid for prior to the rescission thereof, as is particularly stated in the fifth finding of fact herein, the sum of one hundred and sixty-five thousand four hundred and eight 97-100 ($165,408.97) dollars.
    II. —For and on account of the damages which directly resulted from the rescinding and breaking up of said contract, as is particularly stated in the tenth finding of fact herein, the sum of four hundred and ten thousand six hundred and eighteen 70-100 ($410,618.70) dollars.
    That said two sums amount in the aggregate to the sum of $576,027.67.
    Third.—That said John B. Devlin, as administrator of the estate of said Charles Devlin, deceased, is entitled to recover judgment herein against the said defendant, the Mayor, Aldermen and Commonalty of the city of New York, for the one undivided one-eighth part of the said sum of $165,408.97, to wit, the sum of $20,676.12, and also the one undivided eighth part of the above-mentioned sum of $410,618.70, to wit, the sum of $51,327.33, amounting together to the sum of seventy-two thousand and three dollars and forty-five cents.
    
      Fourth.—That the defendant, the said Samuel Donaldson, is entitled to recover judgment herein against the said the defendant, the Mayor, Aldermen and Commonalty of the City of New York, as follows: For the one undivided half part of the said sum of $165,408.97, to wit, the sum of $82,704.48, and also to the one undivided half part of the said sum of $410,618.70, to wit, the sum of $205,309.32 : amounting, together to the sum of $288,013.80.
    Fifth.—That the defendant, the said Charles T. Blish, or his legal representatives, are entitled to recover judgment herein against the defendant, xthe Mayor, Aldermen and Commonalty of the City of New York, as follows: For the one undivided one-fourth part of the said sum of $165,408.97, to wit, the sum of $41,352.24, and also the one undivided one-fourth part of the said sum of $410,618.70, to wit, the sum of $102,654.66, amounting together to the sum of $144,006.90.
    Sixth.—That the defendant, the said Tilly R. Pratt or his legal representatives, are entitled to recover judgment herein against the said defendant, the Mayor, Aldermen and Commonalty of the city of New York, as follows: For the one undivided eighth part of the said sum of $165,408.97, to wit: the sum of $20,676.12 ; and also the one undivided one-eighth part of the said sum of $410,618.70, to wit: the sum of $51,327.33 ; amounting together to the sunr of $72,003.45.
    Seventh.—That the facts stated in the seventh finding of fact herein do not constitute a bar to the plaintiff’s right of recovery herein, nor to the right of the several defendants, other than the Mayor, Aldermen and Commonalty of said city, to recover herein.
    Eighth.—That the said plaintiff and the said defendants other than the said city are entitled to judgment dismissing the counterclaim of the said the Mayor, Aldermen and Commonalty of said city of New York, specified and described in the sixteenth finding of fact herein.
    The question as to whom, the said money shall be paid and the question as to the right and interests of the defendants herein, other than the Mayor, Aldermen and Commonalty of the city of New York, to the sum or sums of money found due herein from said city, are hereby reserved for further consideration, as by the said order of reference is provided.
    The corporation council on behalf of the Mayor, etc., of New York, moved that the judgments be entered in accordance with the report by the parties entitled to recover.
    A new corporation council having been appointed, the motion for judgment was withdrawn and a motion was made to vacate and set aside the report on the ground that the referee had not reported as to whom the money should be paid.
    Upon this motion the court at special term rendered the following opinion:
    
      
       Code Civ. Pro. section 1022 provides as follows: “The decision of the court, or the report of the referee upon the trial of the whole issue of fact, must state separately the facts found, and the conclusions of law; and it must direct the judgment to be entered thereupon. In an action, where the costs are in the discretion of the court, the decision or report must award or deny costs; and, if it awards costs, it must designate the party to whom costs to be taxed, are awarded.”
      As to what the findings should include, see note at p. 202 of this vol., and the case of Livingston v. Manhattan Ry. Co., in this vol.
    
    
      
       As to power of counsel to waive a client’s right, see Abb. Civ. Jury Brief, 11, 12, 36, 76; 1 Abb. New Pr. & F., 450.
    
    
      
       See note on preceding page.
    
   Bookstaver, J.

The ground of this motion is that the Referee did not in his report direct the judgment to be entered thereupon as required by section 1022 of the Code of Civil Procedure. This section among other things provides that the report of the Referee upon the trial of the whole issue of fact, must direct the judgment to be entered thereupon. Instead of doing this, the referee in the last paragraph of his report, said: “ The question as to whom the said moneys shall be paid, and the question as to the right and interests of the defendants herein—other than the Mayor, Aldermen and Commonalty of the city of New York—to the sum or sums of money found due herein from the said cityi are hereby reserved for further consideration as by the said order of reference is provided.’’

The first order of reference in this matter was made-as far back as the year 1865, and a long trial was had thereunder. The judgment upon the report of the referee on that trial was reversed by the general term of this court in 1875, and on appeal to the court of appeals the decision of the general term was reversed and a new trial ordered. On the 20th of November, 1876, a new order of reference was made which contained the provision referred to in the referee’s report. Subsequent to that time there were various changes of referees made, either on account of death or resignation ; and finally Abram Wakeman, Esq., was appointed referee by an order of this court, dated July 26, 1890. Both the orders of November, 1876, and of July, 1890, now remain in full force, and have never been vacated or set aside. All the parties to the action have acted under both orders, and the various corporation counsels having charge of the action, have treated them as valid orders and acted on them as such. After the report of the referee was filed, a motion was made for an extra allowance, and granted by this court. The costs have been taxed by the parties obtaining judgment without objection. The parties in interest have stipulated as to the respective amounts to be paid to each person. The corporation counsel, acting for the defendant, the Mayor, etc., made a motion to compel the entry of judgment on such report; the form of this judgment was agreed upon and the order settled. I think it is now too late for the counsel to the corporation to raise the question presented, and that the defendant, the Mayor, etc., must be regarded as having waived any irregularity there may have been in the order or the report of the referee. If anything further remains to be done under the report presented, a new referee may be appointed in order to determine the question as to whom the money shall be paid, or the rights and interests of the defendants other than the Mayor, etc.

Franklin Bartlett (William H. Clark, corporation counsel) for appellants.

I. The failure of the referee’s report to direct judgment as required by Code Civ. Pro. § 1022, was a fatal error (Citing Code Civ. Pro. §1022; McNaughton v. Osgood, 114 N. Y. 574; Central Trust Co. v. N. Y. City and Northern R. R. Co., 18 Abb. N. C. 410; Benjamin v. Allen, 35 Hun., 115).

II. The general rule of waiver can not be invoked against a municipal corporation (Citing Seaver v. The Mayor, 7 Hun, 331; Brooks v. The Mayor, 12 Abb. N. C. 350.) .

The motion must therefore be denied, without costs.

The order having been appealed from, the general term opinion was as follows :

Bischoff, J.

The third, fourth, fifth, sixth and seventh conclusions of law as set forth in the referee’s report in concise and unmistakable terms, settle the form and amount of the several judgments to be entered in favor of the plaintiff and the defendants other than the Mayor, etc., of New York, and this is a sufficient compliance with the requirements of section 1022 of the Code of Civil Procedure that the report must direct the judgment to be entered thereupon ” (Hinds v. Kellogg, 37 State Rep., 356).

In this view of the main question presented upon this appeal, it is immaterial whether or not the defendants, the Mayor, etc., of New York, have waived the objection to the report arising from the alleged omission of the referee to direct the judgment, by moving to compel the parties entitled thereto to enter judgment upon the report. Our conclusion that the report is sufficient to authorize the entry of judgment preserves the right to cause such entry to be made without regard to the alleged waiver.

• The order appealed from must be affirmed with costs.

III. The decision of the general term is unsound.

T. C. Cronin for respondent.

The doctrine of I. estoppel set forth in the opinion of the special term is a complete answer to the motion (Citing Juliand v. Grant, 34 How Pr. 132 ; Russell v. Mayor, 1 Daly, 263 ; O’Leary v. Board etc., 93 N. Y. 1; Curren v. Mayor, 79 Id., 514).

[The court of appeals affirmed the order June, 1891, without opinion.]  