Pope v. Perault

The testimony should, under rule 30, have been filed with the report. Until that is done, the filing is incomplete, and the time to except does not run. Whether the attorney violated his agreement with the stenographer or not,-the referee certainly could not report without the testimony. It matters not how such testimony was taken, nor with what understanding. It was either in the referee’s hands or it was not. If it was, it necessarily became a part of his report. If it was not, there was no basis for judicial action. The stenographer, it is true, might have retained the notes until his bill was paid. But he could not limit the effect of their surrender. By that act the referee acquired the testimony for the purposes of the decision, the report, and as a legal consequence, of the filing.

The court below should therefore have directed the filing of the report; but, under the previous opinion of the General Term, without costs. It should also have refused to hear the motion to confirm the report until the testimony had been filed and the attorney had had the usual time to except thereafter.

Both orders should be reversed, without costs, and an order made, granting the motion to file the testimony without costs, and dismissing the motion to confirm the report, without costs, but without prejudice to a renewal in due course of practice after the filing of the testimony.

So ordered.