Opinion
July 12, 1965
In an action to foreclose a mortgage upon real property, in which the defendant Rae asserted certain counterclaims and instituted a third-party action, the said Rae, as a defendant and third-party plaintiff, appeals from a judgment of the Supreme Court, Kings County, entered September 1, 1964 upon the court's opinion-decision confirming the report of a Special Referee after a nonjury trial before him, which directed foreclosure and sale as demanded in the complaint; awarded plaintiff's attorney counsel fees, and dismissed said Rae's counterclaims and third-party complaint. Judgment reversed on the law, without costs, and new trial granted. No questions of fact have been considered. Under the circumstances disclosed by this record, it was an improvident exercise of discretion to refuse to grant appellant a reasonable adjournment. It was also error for the Special Referee to telephone to the office of a prospective witness and to request said witness to communicate by telephone with the Referee, which the witness did, for the purpose of ascertaining what the witness knew about the pending litigation. In view of these errors, we have concluded that, as a matter of law and in the interests of justice, a new trial is required. Beldock, P.J., Ughetta, Christ, Brennan and Hopkins, JJ., concur.