¶1It is enough under the Code (§ 270), if the appointment of referees be made on the written consent of the parties; this may be written by them or by their attorney, or the clerk of the court entering their consent in the minutes of the court, or the referees, who stand in the place of the court, entering it on their minutes. This last was done here and was sufficient. The parties also might by their acts waive any further writing than such as existed on the minutes of the referee, if more w’ere otherwise necessary, as they may waive a trial by twelve jurors by allowing eleven, or any less number, to act without objection. The subject is so well treated in Keator agt. Ulster and Delaware Plank Road Co. (7 How. Pr. R. 41), that a reference only to that case is necessary.
¶2Good faith required that the defendant should never have raised the objection, and that he should have immediately supplied any defect in form in the appointment, if there was any. It is proper, therefore, that he should pay the costs of both motions.
¶3The motion to set aside report of referees is denied with $10 costs; and the motion that the name of Mr. Hoffman he entered as one of the referees, as of the day when the consent was first given, is also granted with $10 costs to the plaintiff.-