This is an appeal from an order of the General Term, second department, affirming an order of the Special Term denying a motion by the plaintiff for the *Page 510 appointment of two referees in place of two of three previously appointed who declined to serve.
The order appealed from also vacated the order of reference and the stipulation in pursuance of which it was made.
The plaintiff presented to the executors a claim against the estate of Thomas Aldridge deceased; it was disputed and referred under the statute.
In order to determine whether the action of the court below can be sustained it is necessary to examine the provisions of the Code of Civil Procedure regulating the practice in such cases.
The mode of ascertaining debts by executors and administrators is now prescribed by section 2718 of the Code.
After providing for the presentation of claims the section reads as follows: "If the executor or administrator doubts the justice of any such claim he may enter into an agreement in writing with the claimant to refer the matter in controversy to one or more disinterested persons, to be approved by the surrogate. On filing such an agreement and approval in the office of the clerk of the Supreme Court, in the county in which the parties, or either of them, reside, an order shall be entered by the clerk referring the matter in controversy to the person or persons so selected. On the entry of such order the proceeding shall become an action in the Supreme Court. The same proceedings shall be had in all respects; the referees shall have the same powers, be entitled to the same compensation and subject to the same control as if the reference had been made, in an action in which such court might, by law, direct a reference."
These provisions were strictly followed in the case at bar and the decision of the court below must be regarded as made in an action pending in the Supreme Court.
Two of the three original referees having refused to serve, what was the remedy open to the plaintiff?
Very clearly to follow the practice as laid down for cases at issue in the Supreme Court.
Section 1011 of the Code, after providing for the appointment *Page 511 of referees, reads as follows: "If the referee named in a stipulation refuses to serve, or if a new trial of an action tried by a referee so named is granted, the court must appoint another referee, unless the stipulation expressly provides otherwise."
Prior to the amendment of section 1011 incorporating the above provision, it was held that the refusal of the referee to act vacated the order in a non-referable action, as the stipulation upon which it was made was a waiver of the right of trial by jury upon the condition that the case should be tried by the referee named.
This general rule was, however, limited, and in the trial of disputed claims by referees under the statutes relating to executors and administrators it was provided that "the court may set aside the report of the referees or appoint others in their places." (2 R.S. 91, § 37.)
The amendment to section 1011 of the Code, already quoted, made a radical change in the practice and imposed upon the court the duty of appointing a referee to fill a vacancy caused by a refusal to serve. This power of appointment is not discretionary, but the court must appoint; the section is mandatory.
It will be observed that this provision works no hardship, as the amendment only makes it the duty of the court to appoint if the stipulation fails to provide otherwise.
It is, therefore, always within the power of the parties to protect themselves against the exercise of this power of the court by inserting the necessary provisions in the stipulation.
In the case at bar the stipulation does not contain such provisions, and it was the duty of the court to appoint two referees in the places of those who had refused to serve.
What the court did was to vacate an order of reference which named three referees, one of whom was still in office, and the stipulation upon which it was granted, and the result of its decision was to discontinue an action pending in the Supreme Court.
We are of opinion this was wholly without warrant of law. *Page 512
The order appealed from and the order of the Special Term should be reversed, with costs, and the motion be remitted to the Special Term to appoint two referees in the places of those who declined to act.
All concur.
Ordered accordingly.