Opinion
11-28-1928
APPEL v. FLEUCHAUS et al.
Feder & Rinzler, of Passaic, for plaintiff. Samuel Rosenfeld, of Paterson, for defendants.
Suit by Abraham Appel against Peter Fleuchaus and others. On plaintiff's motion for the confirmation of referee's report, to which exceptions are filed by defendant. Report confirmed.
See, also, 145 A. 334.
Feder & Rinzler, of Passaic, for plaintiff.
Samuel Rosenfeld, of Paterson, for defendants.
PORTER, J. This is a suit on mechanic's lien, and was referred to Louis A. Cowley, referee, by order dated December 1, 1927. The master reported under date of January 27, 1928, and his report was duly confirmed by order of February 6, 1928. Thereafter an application was made to set aside the judgment so entered, on the ground that the defendant had not had notice of the hearing before the referee, and had not appeared at the hearing, and order was entered, dated April 3, 1928, that the matter be opened so that the defendant could appear before the master and submit proofs and testimony and to cross-examine witnesses of the plaintiff.
Further hearing was had, and report of the referee was filed, dated October 17, 1928, which is now sought to be confirmed by the plaintiff, to which objection is made by the defendant on various grounds.
First, it is contended that no notice was given by the plaintiff of the filing of the report. There was a notice of some sort served, and a hearing had and exceptions filed. I think that notice was sufficient to comply with the terms of the rule.
Second, that the referee had no jurisdiction, because he failed to take an oath to faithfully and fairly hear and examine the cause, and so forth. The defendant cannot now be heard to complain in this regard, because he submitted himself to the jurisdiction and participated in the hearing, nor was the question raised when the matter was before the court after the first referee's report. Now, having participated in that, the matter should then have been raised if the defendant wished relief on that ground.
The other grounds raised, 3, 4, 5, and 6, are without merit. 3 and 4 relate to questions of fact, which are solely within the province of the referee, and not of the court.
5 and 6 relate to the referee's permitting the plaintiff to examine witnesses in the absence of the defendant or his counsel and refusing to later permit such witnesses to be recalled. Those matters were within the discretion of the referee, and they do not justify the withholding of confirmation of the report. Especially is this true when it is realized from the proofs that there were extensive hearings and a number of witnesses examined, and that the master had ample opportunity, because of the various hearings held, to hear all of the testimony, and to correctly arrive at the facts in controversy.
An order will be made confirming the report.