Little v. . Lynch
Cases that cite this one
26 later published cases cite this decision. The 25 that cite it most often are listed here.
- People ex rel. New York Central Railroad v. State Tax Commission (Appellate Division of the Supreme Court of New York 1953)
- In re Robinson's Will (New York Surrogate's Court 1907)
- Morrow v. McMahon (Appellate Division of the Supreme Court of New York 1902)
- In re Natural Dry Ginger Ale Corp. (District Court, W.D. New York 1935)
- In re the Estate of Miller (Appellate Division of the Supreme Court of New York 1931)
- In re the Judicial Settlement of the Account of Proceedings of Dunn (Appellate Division of the Supreme Court of New York 1914)
- Keeler v. Bell (New York Supreme Court 1905)
- Clark v. Pemberton (Appellate Division of the Supreme Court of New York 1901)
- Bishop v. Bishop (Superior Court of New York 1893)
- Bishop v. Bishop (The Superior Court of New York City 1893)
- Davis v. Commercial Metals Co. (Civil Court of the City of New York 1967)
- People ex rel. New York Central Railroad v. State Tax Commission (New York Supreme Court 1952)
- Savio v. Del Bello (Appellate Division of the Supreme Court of New York 1946)
- Shiro v. Shiro (Appellate Division of the Supreme Court of New York 1932)
- Hebard v. City of New York (Appellate Division of the Supreme Court of New York 1910)
- In re City of New York (Appellate Division of the Supreme Court of New York 1910)
- State v. Adams (Wash. 1906)
- Keeler v. Bell (New York Supreme Court 1905)
- Agricultural Insurance v. Darrow (Appellate Division of the Supreme Court of New York 1902)
- Sounier v. Barnum (New York Supreme Court 1900)
- Riley v. Pagan (Appellate Division of the Supreme Court of New York 1898)
- Nealis v. Meyer (Appellate Terms of the Supreme Court of New York 1897)
- Craig v. Craig (New York Supreme Court 1892)
- O'Neill v. Howe (New York Court of Common Pleas 1890)
- Lampman v. Smith (New York Supreme Court 1888)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
It was decided in Phipps v. Carman, (84 N. Y. 650) that the requirement of .section 1019 of the Code of Civil Procedure, that a referee’s report “ must be either filed with the clerk, or delivered to the attorney, for one of the parties, within sixty days from the time when the cause was finally submitted,” must be literally complied with to prevent a termination of the reference by notice as prescribed in that section. The court in that case affirmed an order of the General Term, which affirmed an order of the Special Term vacating a judgment entered upon a report of a referee delivered after service of notice terminating the reference under that section, notwithstanding it appeared that the referee completed his report within the sixty days, and gave written notice *114 to the attorney for the prevailing party that it was ready to be delivered upon payment of his fees. The decision in that case is decisive of this, which arises upon similar facts. It necessarily determined that under section 1019, a tender of the report within the time limited was not a delivery within that section. A referee is not bound to deliver his report without payment of his fees. The interest of the prevailing party will generally secure the taking up of the report. But if he fails to do so, the referee must then file it in order to prevent a termination of the reference by notice under the statute. Upon filing the report the referee may doubtless maintain an action for his fees. The acceptance of a reference is .a voluntary act, and the referee may decline the reference, but if he accepts it he must rely for the payment of Ms fees upon the interest of the prevailing party to take up the report, and if he omits to do this, upon his common-law action to recover them, after putting himself in a position to maintain it by filing the report. This question was not decided in Geib v. Topping (83 N. Y. 46), and the allusion in the opinion in that case to this subject was casual, and the point decided is not in conflict with Phipps v. Carman (supra).
The order of the General Term should be reversed, and that of the Special Term affirmed.
All concur.
Ordered accordingly.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.