Opinion
December Term, 1902.
Barclay E.V. McCarty, for the appellant.
S.B. Brownell, for the respondents Archibald M. Shrady and others.
Louis F. Doyle, for the respondent Van Kirk.
Jacob Shrady, for the respondents John and Jacob Shrady.
The principal question for our consideration is as to the right and power of the Special Term, after a reference to hear and determine, to insert the provision permitting the sales upon bond and mortgage. Incidentally the question of practice arises as to whether such a provision, if improperly inserted, can be stricken out on motion as an irregularity, or whether the plaintiff's remedy is not by appeal from the judgment. While the case was pending and the referee had jurisdiction over the action, he had the right, in connection with the making of his report and decision, to settle the form of the judgment, but after the report had been taken up and filed, the referee was functus officio and had no further jurisdiction for the purpose of deciding any issue involved in the action. If we are right in this view we are not aided in our consideration of the main question by the approval of the referee, two months after his report was filed, as to the form of the judgment, but must view the question precisely as though the referee, having the right to determine such form, had neglected to do so.
The question, therefore, narrows down to whether, upon the motion to confirm the report and settle the form of judgment, the court had the power to insert the provision allowing sales on bond and mortgage.
In Vagen v. Birngruber (9 N.Y. St. Repr. 729) it was said, "the action being for equitable relief, the final judgment should have been a decree of the court, settled by the court, and entered upon its direction, the referee who tried the cause not having reported the form of a decree to be entered. Section 1228 of the Code in no way conflicts with this practice." Here, however, the sales were to be made by testamentary trustees, and, therefore, necessarily under the provisions of the will; and the will directed a sale of the realty, but was silent as to whether it was to be sold entirely for cash or on credit, or otherwise than for cash. This being the situation, we think the general rule is applicable, that the failure to authorize a sale on bond and mortgage raises the presumption of an intention that the property should be sold for cash. Where a testamentary disposition has been made directing the sale of realty, the invariable rule is that the sale shall be absolutely for cash, unless otherwise distinctly specified, and not for bond and mortgage nor on any credit plan.
Whether this question was considered by the referee is not made to appear, further than that his report does not in terms do more than direct a sale of the realty, thus following practically the language of the will; and, seemingly, therefore, the presumption would follow that in his view the sale should be solely for cash. When the motion was made to the court, therefore, we think it was without power or right to insert the provision essentially different from this, and allowing the sale upon terms permitting the purchaser to give a bond and mortgage for sixty per cent of the purchase price. As said in Paget v. Melcher ( 26 App. Div. 15) : "The action was referred to a referee to hear and determine, and his report was made directing the judgment to be entered. In that case the report stands as the decision of the court (Code Civ. Proc. § 1228), and by the provisions of that section the clerk was required to enter judgment upon it when its form has been settled by the referee. Although it has been deemed necessary in this department that there should be a direction of the court for the entry of the judgment, yet when entered it must be the one directed in the report of the referee; and the court at Special Term, when a motion is made for leave to enter the judgment, has no power or authority to give directions which shall require the entry of a judgment substantially different from that prescribed in the report of the referee. ( Kennedy v. McKone, No. 2, 10 App. Div. 97. ) The judgment to be entered upon this report is to be reviewed in the same way as one entered upon a decision of the court, for the report has the same effect precisely as such decision. The manner in which it is to be reviewed is prescribed in section 1022 of the Code, and no authority is given to the court at Special Term to change or alter the directions given by the referee as to the entry of judgment. The application for judgment upon the report which is made to the court at Special Term is not for the purpose of a review of the correctness of the findings of the referee, but simply to furnish an assurance of regularity in the manner of entering the judgment and to enable all parties to know that the judgment as entered conforms to the one directed in the report. There was, therefore, no authority in the Special Term to modify the conclusions of law found by the referee so as to enter a different judgment than that directed in the report."
We have already adverted to the fact that the referee, after he ceased to have control over the action, was of opinion, as appears from his approval of such provision in the form of judgment, that it should be inserted; but this does not aid us, because, as stated, when he expressed such approval he was functus officio, and, therefore, it is as though he had not attempted to exercise that power. It was the duty of the referee to decide every material question involved in the litigation, and he had no power to relegate or return any such question for decision to the court. The question as to whether under the terms of the will the property could be sold otherwise than for cash, involving as it did a construction of that instrument, was a material one; and it needs no argument to support the view that the referee could not refuse to pass upon such a question and then refer it back to the court. There is certainly no provision of law which gives a referee the right to confer jurisdiction on the court to dispose of some untried question which was before him on the reference to hear and determine. It was his duty to try and dispose, as we have said, of all the material questions; and upon the return of his report to the court, all that remained was for the court to settle the form of the judgment accordingly. This, however, gave no power to the court to add to or take away from the judgment in a material respect, and the attempt to do so is a clear irregularity.
We have thus reached the conclusion that the court exceeded its power in inserting any such provision in the judgment. The question remains, however, whether the practice pursued by the plaintiff was right in moving to strike out the provision as irregular, or whether his sole remedy was by appeal from the judgment. Under the authorities to which we have adverted, we think the practice followed was right. As said in Corn Exchange Bank v. Blye ( 119 N.Y. 414): "We think the decisions are uniformly to the effect that when an error has been made in respect to the form of the judgment by which its scope or amount has been enlarged or increased beyond that plainly authorized by a verdict, referee's report or decision of a court, a question is not presented for the consideration of the court on appeal; but the error must be corrected if at all, by motion in the court of original jurisdiction." It follows accordingly that the order appealed from should in this respect be reversed.
In regard to the three other alleged irregularities we need add nothing to what was said by the learned judge in disposing of the motion at Special Term.
The order appealed from should accordingly be reversed, and the motion granted to the extent indicated, and in all other respects affirmed, without costs to either party on this appeal.
McLAUGHLIN and LAUGHLIN, JJ., concurred; VAN BRUNT, P.J., dissented.
Order reversed and motion granted to extent stated in opinion; in all other respects affirmed, without costs to either party.