Opinion
09-19-1931
WOLF v. MOSIE.
Exceptions overruled, report confirmed, and judgment for plaintiff. Dougal Herr, of Hoboken, for plaintiff. Cyril McCauley, of Union City, for defendant.
Action by Joseph Wolf against Charles Mosle, in which a reference was made to a Supreme Court Commissioner to take testimony and state an account between the parties. On exceptions to the report of the referee and on motion for confirmation of the report.
Exceptions overruled, report confirmed, and judgment for plaintiff.
Dougal Herr, of Hoboken, for plaintiff.
Cyril McCauley, of Union City, for defendant.
BROWN, J.
The questions presented for determination arise out of defendant's exceptions to the report of Mark A. Sullivan, Esq., to whom a reference was made under section 155 of the Practice Act (3 Comp. St 1910, p. 4101).
The defendant contends the referee was without jurisdiction to hear and report on the matters referred because "he failed to take oath required by statute and failed to file in the record the said oath"; that the report was contrary to the evidence; and that the referee erred in the admission of testimony.
The complaint in the cause charges the defendant with failure to pay his note to the plaintiff in the sum of $4,000; also for a balance due of $2,465 on a building contract and $1,513.75 for extra work. The defendant filed a general denial to those charges and further answers that the note was given as security for the performance of a written building contract providing for a construction cost of $39,265, and not as a payment in addition to the contract price. The defendant also counterclaimed for alleged defective work and materials.
The charges made by the respective parties were so numerous, upon inquiry, it was ascertained the substantial dispute between the parties was in the nature of an accounting and with the consent of the parties a reference was made to a Supreme Court Commissioner, to take testimony on the issues framed and to state an account between the parties and report thereon, which was done, to the effect that the defendant was indebted to the plaintiff for $2,475.
Considering the defendant's exceptions in the order taken, the court has not been referred by counsel to any statutory declaration requiring the referee to be sworn before taking testimony and requiring him to file his oath thus taken except the act concerning arbitration references. The record submitted fails to disclose whether an oath was taken by the referee, nor does there appear any objection having been made by the defendant to this alleged irregularity.
The only statutory direction requiring an oath to be taken by a referee is found in section 4 of an "Act for regulating references and determining controversies by arbitration." 1 Comp. St. 1910, p. 106. This statute has reference particularly to matters provided for under that act. The reference in the instant case was made under section 155 of the Practice Act, and not under the act dealing with controversies by arbitration.
The Practice Act requires that the reference should be made to some competent person to state and report an account between the parties and the amount that may be due from either party to the other. From all that can be ascertained from the record it appears that this statutory direction was fully complied with.
The competency of the referee is not and cannot be well disputed. He is not only one of the leading members of the bar of this state, but has graced the courts of our state with grace and signal ability.
The mere fact that the parties consented to the reference does not cast the reference within the purview of the act concerning the determination of controversies by arbitration, for that act not only requires the consent of the parties to the reference, but provides for an agreement to be filed concerning the submission as well as the condition of the bond to be furnished, and contains other requirements that clearly distinguish a reference under that act from one under section 155 of the Practice Act. The lastmentioned act does not require the taking of an oath of office by a referee and vests the referee with full and complete power to swear witnesses. There are many comparable statutory powers exercised by members of the bar where, in taking depositions, the officer is not sworn. No oath of office is taken by an officer before hearing testimony under section 33 of the Chancery Act (1 Comp. St. 1910, p. 423) nor under references to masters (1 Comp. St. 1910, p. 449, § 104 et seq.). The master to whom matters are referred takes but one oath of office under rule 176 of the Court of Chancery and thereafter proceeds with the exercise of his powers and duties without repeating the oath every time a reference is made to him. The court cannot find, and has not been referred to, any rule or statute that requires a Supreme Court Commissioner to take a general qualifying oath of office. Evidently the only oath taken is upon admission to the bar. Rule 8 of the Supreme Court. A Supreme Court Commissioner is not required to take an oath in exercising his powers under 1 Comp. St. 1910, p. 221, § 6; nor under 3 Comp. St. 1910, p. 4071, § 62. Inquiry at the office of the clerk of the Supreme Court elicits the information that as a general practice a Supreme Court Commissioner does not take and file an oath of office every time a reference is made to him unless specifically directed by statute to do so. Very often a long-established practice makes the rule. Seaman v. City of Perth Amboy, 98 N. J. Law, page 174, 119 A. 278.
In the instant case the conduct of the defendant has rendered it unnecessary for the court to decide whether a referee under section 155 of the Practice Act is required to take an oath of office before taking testimony, for it appears from the record that the defendant submitted himself to the jurisdiction of the referee; took part in the entire proceedings; exhaustively caused witnesses to be examined and cross-examined in his behalf without making any objection or protest to the referee about his qualification;therefore, the objection comes too late at this time. Then again, in the absence of anything to the contrary appearing in the record, a presumption arises that the referee was fully qualified to hear the testimony and make his report. Appel v. Fleuchaus, 151 A. 97, 8 N. J. Misc. R. 501. For those reasons the first exception to the report of the referee will be overruled.
The report submitted by the referee is amply supported by the testimony, and the court finds no error in the conduct of the referee in the admission and exclusion of evidence at the hearing before him; therefore, the second and third exceptions taken to the referee's report will be overruled.
The plaintiff upon notice has moved for a confirmation of the referee's report. This motion will be granted, and, the defendant having failed to reserve his right of trial by jury at the time the reference was made, the plaintiff is entitled to have final judgment entered and an allowance for the referee fixed. The terms of an order to this effect will be settled upon proper application.