Pincus Loeb Weinberger, Respondent, v. Metropolitan Traction Company, Appellant

Pincus Loeb Weinberger, Respondent, v. Metropolitan Traction Company, Appellant. Inference to determine controverted facts on a motion disapproved — a default opened after gross laches. The plaintiff in an action to recover damages for personal injuries, made a motion to substitute the Metropolitan Street Railway Company for the. Metropolitan Traction Company as defendant therein, upon the ground that service was intended to be made upon the former company: September 16, 1899, the court directed a reference of the questions arising on the motion, and on May 31, 1900,’after several hearings and nineteen adjournments, the plaintiff defaulted. June 7, 1900, the reference was-declared closed, and on December 81, 1900, the plaintiff made a motion before the referee lo open the default, which motion . was granted upon condition that the plaintiff pay to the defendant's attorney the sum of twenty-five dollars before a specified time. The plaintiff having failed to comply with the conditions, the reference was again closed February 14, 1901. Subsequently the defendant paid the fees of the referee, amounting to the sum of $200, and took up the report and filed the same March 19, 1901. April 22, 1901, the plaintiff obtained an order from the Special Term opening his default upon the payment of twenty-five dollars costs. Held, that, as the Statute of Limitations would be a bar to a new action against the railroad- company, the plaintiff should, notwithstanding the gross laches of his attorneys, be permitted to proceed to a hearing upon the merits on his motion for a substitution; That he should, however, have made the motion to open the default before the defendant had paid the referee’s fees, and that the order opening his default should, therefore, be modified by requiring him to pay the defendant the amount of the referee’s fees and ten dollars costs of the motion, in addition to the twenty-five dollars costs allowed by the Special Term, and that ten dollars costs of the appeal and the disbursements thereon should be awarded to the defendant to abide the final award of costs. The practice of directing references to determine controverted questions of fact arising upon motions, except in very exceptional cases where the facts are complicated and it is manifest that the truth cannot be ascertained with reasonable certainty without an examination of the witnesses, disapproved by the court. Appeal by the defendant, Metropolitan Traction Company, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 22d day of April, 1901, granting, upon payment to the defendant of $25 costs, plaintiff’s motion to open his default beftire a referee appointed to determine questions arising ón a motion made by the plaintiff to substitute the Metropolitan Street Railway Company for the Metropolitan Traction Company as defendant herein, upon the ground that service was intended to be made upon the former company, and also from an order entered in said clerk’s office on the 22d day of April, 1901, denying the defendant’s motion to confirm the report of the referee on said reference and to deny the plaintiff’s motion to amend his complaint, and to refer the defendant’s motion to the justice presiding when the order of reference was granted. The action is brought to recover $25,000 damages sustained by plaintiff, and alleged to have -been caused by the neglect in the operation by defendant of a street car on Sixth avenue, between Ninth and Tenth streets, on the 4th day of March, 1896-. According to an affidavit presented by defendant the action was commenced on the 23d day of June, 1896, by the service of a summons and the complaint was not served until nearly four months thereafter; but an affidavit presented by the plaintiff shows that the action was not commenced until the 10th day of October, 1896, and that the summons and complaint were served together. The summons was served upon Daniel B. Hasbrouck at the office of the Metropolitan Street Railway Company, he then being its vice-president. Issue was joined on the 9th or 19th day of November, 1896, according to whether the affidavit presented by the defendant or that presented by the' plaintiff is correct. There have been three substitutions of attorneys for the plaintiff. At the time this action was commenced each of these companies owned- and operated a line of street railway in the city of New York. Henry A. Robinson, who appeared for the Metropolitan Traction Company herein, was attorney for both. The order of reference was granted on the sixteenth day of September and entered on the 18th day of September, 1899, and the motion, was adjourned pending the reference. The first hearing was had on February fifteenth thereafter. On May thirty-first, after several hearings and nineteen adjournments, plaintiff defaulted, his attorney having previously withdrawn from the case. At this time an adjournment was had, at the request of an attorney who contemplated being substituted for plaintiff, until the seventh day of June, at which time on defendant’s motion the referen ce was declared closed. On the 31st day of December, 1900, plaintiff’s counsel made a motion before the referee, to open the default. This, motion was granted on the 6th-day of,February,. 1901, upon condition that plaintiff pay to defendant’s attorney the sum of $25 on or before the twelfth of that month, and the reference Was adjourned until the fourteenth day of February, at which time, the costs not having been paid, plaintiff’s counsel moved for an adjournment' to February twenty-first to give plaintiff an opportunity to comply with the terms of the order, and stated that he had been informed by his client that the latter would have the money on the fifteenth. The motion was denied, and, on defendant’s motion, the reference was declared closed. The referee made and signed his report on- the eighteenth of February, wherein he found that plaintiff had failed to establish the facts set forth in his-moving papers. The. report was. filed on the nineteenth day of March and the notice of motion to confirm the same was served on the 23d day of March, 1901, returnable on the twenty-eighth of the same month. The motion was adjourned at the instance of plaintiff until the 8th of April,. 1901, at which, time an order, to show cause, why the default should not be opened, obtained by plaintiff on the sixth of April was made returnable. It appeared that defendant, after plaintiff’s last default, paid the fees of the referee, amounting to the sum of $200, and took up the report. An affidavit presented by defendant shows that proceedings for the voluntary dissolution of the: Metropolitan Traction Company Were taken on the 16th day of September, 1897, but it does not appear whether a final order has been entered thereon. John T. Little, for the appellant. Gwrl L. Schurz, for the respondent. [MAJORITY — Laughlin, J. :] Laughlin, J. : Owing to the reference the motion to substitute the street railway company for the traction company herein has been pending undetermined almost two years. This inexcusable delay of the trial of the issues and unjustifiable expense to the litigants warrants the court in again expressing its disapproval of references to determine controverted questions of fact arising upon motion, except very exceptional cases, where the facts are complicated, and it is manifest that the truth cannot be ascertained with reasonable certainty without an examination of the witnesses. We think the case could and should have been disposed of without a reference. If the plaintiff’s affidavit did not sufficiently present the facts his motion might have been denied without prejudice to a renewal thereof, and if those presented by defendant were insufficient the motion might have been continued and an opportunity afforded to supplement them. As the Statute of Limitations would be a bar to an action now commenced against the railway company, we think justice to the plaintiff, notwithstanding the gross laches of his former attorneys, requires that he be permitted to proceed to a hearing upon the merits of his motion for a substitution. The plaintiff, however, should have made his motion before defendant, acting upon the default, paid the referee’s fees. The order, therefore, should be modified by requiring that defendant be reimbursed the amount of the referee’s fees and ten dollars costs of the motion, in addition to the twenty-five dollars allowed by the Special Term, and by further providing that ten dollars costs of this appeal and the disbursements thereon, be awarded to defendant, to abide the final award of costs in the action. Van Brunt, P. J., Patterson, O’Brien and Ingraham, J J., concurred. Order modified as directed in opinion, with ten dollars costs and disbursements to defendant, to abide the final award of costs in the action.