Opinion
May, 1905.
The order heretofore entered herein by this court is vacated and set aside. A reargument of the appeal herein having been ordered and upon said reargument the attorneys for the respective parties having submitted the said appeal for determination by this court and due deliberation having been had thereon, it is ordered that the order appealed from be and the same hereby is reversed, and the matters in controversy referred to a referee to take the proofs herein and report the same, together with his opinion thereon, to the Special Term of this court, with all convenient speed. The parties, by their attorneys, having consented, the matters herein are referred to Patrick J. Ryan, Esq., an attorney and counselor, residing at the city of Syracuse, N.Y., as such referee. The costs and disbursements to abide the event.
The order should be reversed and an order made appointing a referee to take the evidence of the parties and report the same to the court with his opinion thereon, with costs to abide event. The application was apparently made under section 27 of the General Corporation Law (Laws of 1890, chap. 563, § 15, as amd. by Laws of 1892, chap. 687). The court assumed to hear and determine the matter upon affidavits. Many of the statements made in the affidavits were of conclusions rather than simple facts, and we think the witnesses should be subjected to oral examination and cross-examination, and the whole evidence submitted to the court before a final decision is made. The controversy seems to me to be of too much importance to be thus summarily disposed of. All concurred.