David Combs v. Peter Wyckoff

David Combs v. Peter Wyckoff. THE present action was instituted to recover damages for not delivering a boat alleged to have been purchased by the plaintiff. Woods moved to set aside the report of the referees on an affidavit, made by the attorney in the cause, stating these grounds : that the witnesses of the defendant were seafaring men, and that there had been an express-agreement between the deponent and the plaintiff’s attorney, that the referees should not make up their report until the testimony on the part of the ■ defendant could be obtained; yet, notwithstanding this agreement, the referees had reported without waiting for the evidence on which the defendant relied ; that a sum had been allowed the plaintiff for a loss, said to have been sustained by not being enabled to carry a quantity of wood to New-York, though it was proved and even admitted, that a part of the wood was previously sold by the plaintiff, and the residue might have been conveyed to New-York, had he thought fitthat the referees were nominated by the deponent, without the knowledge of the defendant, between whom and one of them a quarrel had taken place, which was not made up; that by the next circuit the defendant hoped to be able to procure testimony which would at least diminish the damages . . . against him. Skinner, contra, read his own deposition, setting forth that he did not recollect the agreement above mentioned, and that at least it was not in writing; that the referees met several times, and were as often adjourned at the request of the defendant’s attorney under the pretence of not being able to procure the attendance of his witnesses ; that at the last meeting the defendant’s attorney declined summing up, and so far from any enmity existing between the defendant and one of his referees, the very party named as being inimical was his special bail. [MAJORITY — Per Curiam,] Per Curiam, delivered by Livingston, J. The defendant moves to set aside the report of referees, alleging. 1. That it was agreed by the plaintiff’s attorney, that no report should be made until the defendant’s witnesses could be procured, which was afterwards disregarded. This agreement not being in writing, and being denied by the plaintiff’s attorney must be laid out of sight. The court cannot, too frequently inculcate the necessity of reducing to writing all agreements between gentlemen of the bar. Many mistakes, much misunderstanding and controversy will, by this measure, be avoided. In the present case it appears that two months elapsed before the report was made, which was allowing sufficient time for the defendant to produce his witnesses. If they were abroad, he might have applied to the court, (for a term intervened between the appointment and report of the referees) for an order on them not to proceed for a reasonable time, which would have been granted, or it judge at his chambers would have ordered the proceedings to stay until application should be made to the court. 2. Another objection is, that a sum was allowed, which was not proved to be due. Of this allegation there is no satisfactory proof, and therefore we can take no notice of it. 3. A third objection is, an enmity between the defendant and one of the referees. This reference, it is to be observed, was nominated by the defendant’s attorney, and although he might have been ignorant of the quarrel spoken of, the defendant, by his acquiescence in the appointment, and submitting the cause to his decision, cannot now avail himself of this challenge. He should have applied to the court to remove him and appoint another. It is somewhat remarkable, however, that the referee who is repugnant or hostile to the defendant, should be his special bail in this very cause. 4. The defendant states, that “ he can now intro-(t duce evidence to diminish at least the damages re- “ ported.” This is very loose, to say the least. Why , was not this testimony obtained before ? And to what extent will the damages be reduced, if it be offered now ? Will it justify a diminution of only one dollar or less ? If so “ de minimis non curat lex” and if the discovery had been made even prior to the J * report, it would be no reason for disturbing it. Let the defendant take nothing by his motion and pay the costs of this application.