Sproull v. Star Co.

Upon the plaintiff’s motion to vacate an ex parte order for security for costs on the ground, among others, that the allegation of nonresidence was untrue, the question of residence was referred to a referee, to report for the advisement of the court. The report of the referee, favorable to the defendant, was filed, and notice of filing given, but the latter then procured its confirmation ex parte. This motion is to vacate the original order for security and the order of confirmation. The reference was directed under section 1015 of the Code of Civil Procedure for the information of the court upon a point arising upon such motion; therefore, any question arising upon the report was to be determined upon motion for confirmation, and no exceptions thereto were required to he filed. Martin v. Hodges, 45 Hun, 38; Ward v. Ward, 16 Abb. N. C. 256, 259. Hence the order of confirmation without notice was irregular and must- he vacated. Until proper disposition is made of the qiiestion thus referred, the original motion to vacate the order for security must be regarded as still pending, and I cannot properly inquire into the merits of that order. Motion to vacate order of ■ confirmation granted, with $10 costs to ■the plaintiff to abide the event.

Motion granted.