After the close of the evidence on August 26,1903, the attorneys for the plaintiff stipulated in writing that the attorney for the defendant might have until the 7th of October, 1904, within which - to deliver his brief to the referee to whom the issues were referred to hear, try and determine. This stipulation was not brought' to the attention of the' referee, who signed and filed his report on the twenty-sixth day of September. -Two days later, the attorneys for the plaintiff, with knowledge that the referee had not received the brief of the attorney for the defendant and that the latter desired *492to submit a brief, entered judgment upon the report and served, notice of entry and notice of retaxation of costs.
The consent of the referee should have been obtained for the= extension of time to file the brief, and the referee was not at fault, in making and filing his report, but it is evident that the defendant has been deprived of his day in court. Although this was principally owing to the neglect of his attorney to consult the referen with reference to the extension, yet the plaintiff should not b.e permitted to take advantage of. the failure of the attorney for the-defendant to inform the referee and obtain his approval. of • tlieextension of time to file the brief. We are of opinion, therefore,, that the case should have been referred back to- the referee to-examine the record and make a report after considering the brief of the defendant, which was in fact filed within the time prescribed therefor by the stipulation. ■
It follows that the order should be reversed, with ten dollars costs and disbursements of the appeal to abide the event, and motion granted to the extent of referring the case back to the referee with directions to receive and consider the defendant’s brief and make a. new report, without costs of the motion to either party.
Yak Brunt,, P. J., Patterson, O’Brien and Hatch, JJ.,. concurred.
Order reversed, with ten dollars costs and disbursements to abide-event, and motion granted to extent stated in opinion, without costs.