Maybee v. Maybee

Decided January 15, 1889

New York Supreme Court · decided 1889-01-15

<p>Reference—Death of Referee—Powers of Successor.</p> <p>A referee appointed in the place of a deceased referee, whose duty to hear and report is partly performed, may state on information and belief what was done by his predecessor, and thus avoid the necessity of a new proceeding; and at the same time comply with Code Civil Proc. If. Y. § 1022, which provides that the report of the referee on the trial of the whole issue of fact must state separately the facts found and the conclusions of law.</p>

Decided 1889-01-15

Patterson, J.

¶1It is not doubted that the court has power to appoint another referee in the place of one deceased. The only suggestion now made is that a new referee cannot report under oath the facts required to be set out by the section of the Code referred to on the argument.1 But a new referee can state, on information and belief, what was done by his predecessor, and thus sufficie.nlly comply with the requirement, and save the parties the'expense, trouble, and possible loss of a new proceeding. Motion granted, and order signed.

¶2 Code Civil Proc. § 1022, provides: “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. ”