John Heerdegen, Respondent, v. Rudolph Loreck, as Executor, etc., of Alexander E. Schnee, Deceased, Appellant

John Heerdegen, Respondent, v. Rudolph Loreck, as Executor, etc., of Alexander E. Schnee, Deceased, Appellant. Reference—testimony taken before one referee cannot be ordered to be considered by a substituted referee. Where a compulsory reference of the issues in an action has been ordered, and the referee appointed, after taking certain evidence, becomes disqualified in consequence of his election to the Supreme Court, all proceedings taken upon the trial had before him are ended, and the court has no power, upon the substitution, of a new referee, to order that the testimony, taken before the former referee, shall stand and be considered as though originally taken before the new one. Appeal by the defendant, Rudolph Loreclt, as executor, etc., of Alexander E. Schnee, deceased, from so much of an order of the Supreme Court, made at the Rew York Special Term and entered in the office of the clerk of the county of Rew York on the 14th day of September, 1896, as provides that upon a reference the testimony taken before a former referee should stand and be considered in like manner and form as though such testimony had been originally had and taken before the referee appointed in said order. Louis O. Van Doren, for the appellant. William II. Bronh, for the respondent. [MAJORITY — Pee Curiam :] Pee Curiam : It was not within the power of the court, in appointing a new referee to hear and determine the cause, to annex any condition that would compel that referee to decide the issues upon testimony taken before, or rulings made by, another referee. The reference was a compulsory one, and upon the original referee becoming disqualified to act by reason of his election to. the Supreme Court bench, all proceedings upon the trial before him necessarily ended. The substitution of another referee was required, the case in its nature being such as demanded that method of trial. The case stood precisely as if no trial had ever been had. The defendant was entitled to have the judicial officer who was to pass upon his rights hear the testimony of the witnesses and form his determination upon the issues therefrom. The- defendant is not to be compelled to have those rights passed upon in segments or divisions rulings as to one branch of the case made by .one judge and as to another branch by a different judge. There can be but one trial before one judicial officer and it is a trial of the whole case. Upon a new trial being-granted on appeal for error, a condition that testimony taken upon a former trial be received as evidence cannot be énforced. (Bruce v. Davenport, 1 Abb. Ct. App. Dec. 235.) The case differs essentially from Countryman v. Norton (21 Hun, 17), in which there was but a temporary disqualification of the referee by reason of his becoming a judge of the Supreme Court; after his retirement from office, he merely took up the case again at the point at which he left it. It was the same referee. Nor is the case in any way similar to Roberts v. White (73 N. Y. 375). That was merely a proceeding to assess damages on an injunction; the court held that it was within the power of the court on a second proceeding to allow the evidence given on a first hearing to 'be ■ adopted. There was no trial of issues and it was a matter which might have been heard upon ea.'.parte affidavits, and the strict procedure of a trial was not required. In the case at bar the defendant was entitled to a trial according to the strict procedure of a trial, and by one judge and not by two acting upon different branches of the case.’ That hardship may result to the plaintiif by reason of the substitution of a referee is true, but this court has no power to alter the recognized procedure in the trial of issues. The Code of Civil Procedure provides in what cases testimony previously given in a cause may be used on a subsequent trial, and the court cannot legislate upon that subject. That part of the order appealed from was erroneously made and must be reversed, and the provision stricken from the order so that such order will stand as one substituting a new referee named in the order in the place of the former referee, with ten dollars costs and disbursements. Present — Yan Brunt, P. J., Rumsey, Williams, Patterson and Parker, JJ. Tliat part of the order appealed from reversed, and the provision stricken from the order so that such order will stand as one substituting a new referee named in the order in the place of the former referee, with ten dollars costs and disbursements.