Opinion
July 25, 1913.
George W. Wingate [ Frank Moss with him on the brief], for the appellant.
William N. Dykman [ James A. Deering with him on the brief], for the respondent.
In this action the plaintiff moved for the appointment of a referee to hear and determine the issues. On the return day of the motion the defendant appeared in court by counsel, who in open court consented to an order of reference. The court thereupon granted the motion, and appointed a referee to hear and determine the issues. After a trial before the referee judgment was entered in favor of the plaintiff. This judgment was reversed in this court and a new trial granted, a majority of the court being of opinion that the judgment was against the weight of evidence. ( Butterly v. Deering, 152 App. Div. 777.) The order of reversal was silent as to the method of the new trial. The plaintiff thereupon made a motion under section 967 of the Code of Civil Procedure for a trial before a jury of the separate issue as to whether the contract alleged in the complaint as having been made between the plaintiff and defendant, and upon which the plaintiff bases his right of recovery, was in fact made, and reserving the trial as to question of performance, which necessarily involved the examination of a long account. This motion was denied and the plaintiff has appealed. If section 1011 of the Code of Civil Procedure applies, then the order was made properly, as the court was without power to grant the motion. ( Brown v. Root Manufacturing Co., 148 N.Y. 294; Brooklyn Heights R.R. Co. v. Brooklyn City R.R. Co., 105 App. Div. 88. ) It is true that in this case there was not a written stipulation for a reference signed by the respective counsel, but a consent made in open court has been held equivalent to the written stipulation referred to in section 1011 of the Code of Civil Procedure. ( Knowlton v. Atkins, 134 N.Y. 313; Lennon v. Smith, 18 N.Y. Supp. 213.) We do not feel at liberty to disregard the authorities just cited, and, therefore, we affirm the order appealed from, with ten dollars costs and disbursements, on the distinct ground that the court was without power to grant the motion, and not on the ground of discretion.
JENKS, P.J., BURR, RICH and STAPLETON, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.