Opinion
April 15, 1993
Appeal from the Supreme Court, New York County (William J. Davis, J.).
This is an action by a law firm to recover a balance of legal fees from defendant-appellant and his non-appealing co-defendant wife, for representing the former in a criminal proceeding. Appellant is presently incarcerated in State prison. The order referring the issue to a Referee to hear and determine recites that the reference is pursuant to stipulation. Although plaintiff and the co-defendant wife have apparently so stipulated, appellant has not, and indeed vigorously objects thereto. Since this order, purportedly issued under CPLR 4317 (a), lacks the essential jurisdictional predicate of appellant's consent, it must be vacated (McCormack v McCormack, 174 A.D.2d 612; Haibi v Haibi, 171 A.D.2d 842; Sternberg v Sternberg, 88 A.D.2d 950).
Concur — Sullivan, J.P., Carro, Wallach and Kupferman, JJ.