1900]

National Wall-Paper Co. v. Sire.

case the lease expressly provided that the tenant should not make any alterations without the consent of the owner. Subsequently the owner gave the consent that the tenant might make certain alterations at his own expense, but in fact the alterations made were other than those expressed in the consent, and, moreover, it appeared that the work was done without the knowledge of the owner, and it did not appear that it was to be of any actual benefit to the property. We think, therefore, that it cannot fairly be held that the finding of the learned trial judge to the effect that the work in this case was done with the consent of the owner is unsupported by any evidence.

Various exceptions appear in the record, taken to rulings at the trial admitting or excluding testimony offered. None of them seem to have been noticed in the court below. We have examined them all, and find they present no questions of sufficient importance to warrant the reversal below. The order and judgment of the appellate division should therefore be reversed, and the judgment of the special term affirmed, with costs.

PARKER, C. J., and HAIGHT, CULLEN, and WERNER, JJ., concur. GRAY and LANDON, JJ., dissent.

Special Term.

[Apr.

GILL v. CLARK.

[31 Misc. 337; 99 £t. Rep. 406; 65 Supp. 406.]

(Supreme Court, Special Term, Onondaga County. April, 1900.)

1. REFERENCE-REPORT-DELAY-ELECTION TO TERMINATE-WAIVER-REA

SONABLE NOTICE.

Where a referee is given such time as he desires or may find necessary to report, the right of either party, under Code Civ. Proc. § 1019, on failure of the referee to make report within 60 days, to elect to end the reference by service of notice upon the opposite party, is waived, and and the reference cannot be ended without giving reasonable notice. 2. SAME-LETTER CONSTRUED AS EXTENSION OF TIME.

Where a referee is given such time as he desires to file a report, and neglects for five months to make the same, a joint note from the parties at the end of such period, to the effect that they expect a "decision in the near future," operates as a limited extension of time to the referee.*

3. SAME TERMINATION OF REFERENCE.

Where a referee is requested, by the joint note of the parties, five months after the submission of a cause, for a "decision in the near future," and no report is filed at the end of twenty-eight days thereafter, plaintiff is entitled to terminate the reference on notice.

Action by Robert Gill against William Clark. Judgment was entered in favor of defendant on the report of a referee, and plaintiff moves to set aside and vacate the judgment and report. Granted.

Rogers & Atwell, for the motion.

A. E. Kilby, opposed.

ANDREWS, J. This action was tried before a referee, and was finally submitted to him for his decision on August 18, 1899.

*For note on "Extension of Time for Referee to Report," see ante pp. 172-178.

He made no report, and on January 18, 1900, the counsel for the respective parties joined in a letter to him, in which they say that they had long ago submitted the case of Gill vs. Clark, and they thought they would drop him a joint note to refresh his recollection "and procure a decision in the near future." No answer was received, and on February 17, 1900, the plaintiff's attorneys served upon defendant's attorney a notice ending the reference, in pursuance to section 1019 of the Code of Civil Procedure. The latter replied that such practice was irregular, and that, in view of the joint note of January 18th, a definite time should be given the referee within which to make and file his report. On March 1st the plaintiff's attorneys notified the referee that the reference had been terminated. On March 3d the referee made and filed a report in favor of the defendant. The question at issue is therefore whether the reference was ended by the notice of February 17th.

It is unquestionably true that section 1019 was enacted for the benefit of parties to litigation, and may be waived by them. This may be done, not only by formal stipulation, but by such conduct as in fairness estops the litigant from taking advantage of the strict letter of the law. Duyer v. Hoffman, 39 Hun, 360. Such waiver may be for an indefinite time, as in Ballou v. Parsons, 67 Barb. 19. Here, as appears from the papers, the referee was allowed such time as he desired or found necessary. In such a case the reference may not be ended without giving reasonable notice. Or the waiver may be for a fixed period. When this has expired, the notice may be served at any time. Patterson v. Knapp, 83 Hun, 492, 65 St. Rep. 188; 32 Supp. 32; 24 Civ. Pro. 251. In the case at bar it must first be determined whether the letter of January 18th was equivalent to an agreement to extend the time of the referee. If so, was the extension an indefinite one? If not, had the time given expired on February 17th?

I think the letter did operate as an extension of time. In this matter the interests of the referee are to be consulted as well as those of the parties. His compensation depends upon the filing of his report before the reference is ended. When the 60 days

Special Term.

have expired, in the absence of any request, he might well hesi tate, therefore, to continue his labor upon a case before him. But, upon the receipt of such a letter as the one here considered, he might fairly believe that his delay was forgiven, and that he might proceed with safety.

Yet the extension was not an indefinite one. The suggestion was that a decision should be procured "in the near future." Neither he nor the parties could have understood that the intention was to give an unlimited time. The language was not precise. It did not limit the referee to any fixed number of days, but it did limit him to "the near future." Consequently, when this time had expired, either party might terminate the reference. It is, of course, difficult to say exactly what was meant, and what the referee had the right to understand was meant, by these words. Still I think that 28 days was a delay beyond that justified by the joint note, and that on February 17th the extension given had expired. If this be so, the reference was properly ended, and the subsequent report of the referee, and the judgment entered thereon, were irregular. The motion is there fore granted, with $10 costs to plaintiff to abide the event.

Motion granted, with $10 costs to abide event.

1

Kruger v. Persons.

KRUGER v. PERSONS et al.

[52 App. Div. 50; 98 St. Rep. 841; 64 Supp. 841.]

(Supreme Court, Appellate Division, Fourth Department. May 22, 1900.)

1. DISCONTINUANCE--DISCRETION OF COURt.

An application for leave to discontinue an action brought by a creditor against receivers of the debtor was properly refused, where the proceedings on the part of the plaintiff plainly indicated either an attempt to annoy and harass the defendants, or an effort to obtain a priority over other creditors by commencing another proceeding in another state.

2. DISMISSAL-WANT OF PROSECUTION-JUDGMENT.

A judgment dismissing a complaint "on the merits" in default of proof is erroneous.

NOTE. RIGHT OF PLAINTIFF TO DISCONTINUE ACTION.

a. Before appearance

b. After appearance.

1. In general.

2. Change of law or practice pending trial.

3. Infancy.

4. Insolvency or bankruptcy.

5. Mistake.

6. An outre droit.

7. Statute of limitations.

8. Without knowledge or consent of attorneys.

9. Condemnation proceedings.

10. Divorce.

c. After counterclaim interposed.

d. Terms.

a. Before appearance.

According to some of the earlier cases a plaintiff could not discontinue without costs where the defendant had retained an attorney although a notice of retainer or answer had not been served

Robinson v. Taylor, 12 Wend. 191.

Foster v. Bowen, 1 Code Rep. (N. S.) 236.

Weigan v. Held, 3 Abb. Pr. 46?