Opinion
May, 1911.
Joseph Gans (M. Spencer Bevins, of counsel), for appellant Samuel Wiesenfeld.
I. Gainsburg, for respondents.
This motion was granted upon the coming in of the report of a referee appointed to take proof and report. The referee was appointed upon the defendant Wiesenfeld having moved to vacate a judgment entered against him upon the ground of non-service.
The report of the referee assumes to determine the issue which was submitted to him only for the purpose of taking proof and making a report.
The order appealed from, however, shows that the court regarded the reference merely as a report; and, since there is sufficient competent evidence adduced to sustain the court's determination that the defendant was actually served, we cannot disturb this finding.
The order also adjudges that the defendant Wiesenfeld should pay all the costs of the reference which amount to two hundred and ninety-three dollars and seventy-five cents and seventy-five dollars allowance to the attorney for the respondents and the fees and the poundage of the sheriff and keeper's fees, and adjudges that, if the defendant fails to comply with the provisions of this order, he shall "be and he hereby is adjudged guilty of contempt of this court." This last clause was wholly unauthorized and illegal, nor is there any authority for the allowance of seventy-five dollars, which was made to the attorney.
The order is modified by striking out the clause requiring the defendant Wiesenfeld to pay seventy-five dollars to the attorney for the respondents and adjudging the defendant guilty of contempt and as modified is affirmed, with ten dollars costs and disbursements to the appellant, which may be offset against the costs which the order directs the defendant Wiesenfeld to pay.
LEHMAN and GERARD, JJ., concur.
Order modified, and, as modified, affirmed.