Mary Deagan, Appellant, v. Vincent C. King, Jr., and Anna Louise King, as Executors, etc., of Vincent C. King, Deceased Respondents

Mary Deagan, Appellant, v. Vincent C. King, Jr., and Anna Louise King, as Executors, etc., of Vincent C. King, Deceased Respondents. Referee’s report—correction thereof after judgment has been entered thereon— what must be shown to authorize the court to direct it—laches. An affidavit, made by the attorney for the' defendants in an action tried before a referee, to the effect that the referee had stated that he had decided the case upon the merits and that it was by inadvertence that his report did not state that the complaint was dismissed upon the merits, is not sufficient, when not accompanied by an affidavit of the referee to the same effect, to justify the court in making an order directing that the judgment be vacated and the matter sent back to the referee “ to amend his report by stating that the complaint herein was dismissed upon the merits and that judgment be entered upon the merits,” particularly where the motion is not made until nearly two years after the entry of the judgment. The court has no power to direct a referee to decide a case one way or another or to change his report after it has been made; nor can it permit him to make a new report for the purpose of correcting a mistake inadvertently made therein unless the mistake is clearly and satisfactorily shown by competent evidence. Appeal by the plaintiff, Mary Deagan, 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 16th day of February, 1903, vacating a judgment entered upon the report of a referee and referring the matter back to said referee to amend Ms report. Denis Quinn, for the appellant. William A. Boyd, for the respondents. [MAJORITY — Per Curiam:] Per Curiam: Judgment was entered in this action upon the report of a referee in April, 1901. In February, 1903, an order was entered directing that the judgment be vacated and the matter sent back to the referee “ to amend his report by stating that the complaint herein was dismissed upon the merits and that judgment be entered upon the merits.” The order was based upon the report of the referee, the judgment entered and an affidavit of the attorney for the defendants which set forth the history of the action, that the referee had stated he'had decided the case upon the merits, and that it was by an inadvertence his report did not state that the complaint was dismissed upon the merits. The affidavit of the referee is not presented to the effect that he made a mistake or that the report made by him is not in the form in which he intended it to be, and if it is, then the court has no power to order him to change it. If the plaintiff was not satisfied with the judgment entered upon the report, he should have appealed from it instead of acquiescing in it for upwards of eighteen months. The statement contained in the affidavit of defendants’ attorney to the effect that the referee had stated that it was by an inadvertence the report did not state that the complaint was dismissed upon the merits is quite insufficient to authorize the court to direct, by order, the referee to change his report. The court has no power to direct a referee to decide one way or the other or to change his report after it has been made, or to permit him to make a new report for the purpose of correcting a mistake inadvertently made therein, unless such mistake be clearly and satisfactorily shown by competent evidence, and that fact does not here appear, to say nothing of the laches of the defendants, or that they did not move within one year. (Code Civ. Proc. §§ 724, 1282.) The order appealed from is reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Present — Patterson, O’Brien, Ingraham, McLaughlin and Laughlin, JJ. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.