The petitioner is an incorporated cemetery.association and sought to acquire additional land of the defendant in pursuance of the Condemnation Law. (See Code Civ. Proc, § 3357 et seq.) An answer was interposed and the court, at a Special .Term presided oveyby a justice who had been designated to the Appellate Division, granted an order of reference appointing a referee-to hear, try and determine the issues raised' by the pleadings. The parties consented to the referee and the order was entered, a trial had and ■ a decision "rendered directing that the petition be dismissed, with costs, and judgment was entered accordingly. Subsequently the petitioner made this motion to vacate the order of reference and ^ the judgment, on the ground that the justice presiding was disqualified from sitting in Special Term by reason of his designation to the Appellate Division, and the motion was denied. v
*455I concur with the presiding justice that a justice of the Appellate Division is disqualified by section 2 of article 6 of our State Constitution from holding court, except in the Appellate Division, and that, consequently, the order of reference granted in this proceeding was a nullity. It is. attempted, however, to inject life into this void decision and judgment by entering an order of reference as of the date of the invalid order. I do not find any warrant for this method of validating the proceeding.
The procedure on the trial of issues under the Condemnation Law is found in section 3367 of the Code of Civil Procedure. This provides that the court shall try the issues raised by the petition' and answer, or “ it may order the same to be referred to a referee to hear and determine,” and judgment may be entered upon the decision of the referee the same as in am action. The proceeding is in court all thé time and the order of reference in this distinctly statutory proceeding must be granted by the court. The parties and the justice presiding realized this necessity and a court order was in form granted. The order was not, however, granted by a court, and, consequently, there was' no authority for the referee to act. The lawyer who tided the ease had no authority to administer an oath or to make a' decision, for there was no order of reference which was the essential badge of his authority.
It is contended that sections 721 to 724 inclusive of the Code of Civil Procedure are sufficiently comprehensive, to permit this court to grant an order nunc pro tunc. Section 721 enumerates with great particularity the defects or omissions which are cured by the verdict, or decision. They all pertain to irregularities or defects which are obviated by appearance. The subsequent sections vest the court with power to amend or supply the defects or omissions in the pleadings or to relieve a party from surprise or inadvertence, but they all pertain to corrections of an immaterial character.
The distinction here is that the order of reference is at the threshold .of the proceeding after issue and is the only warrant for the referee to act at all.
While the judgment should not be vacated unless we deem that course imperatively required, yet there is no occasion for any undue stretch of authority on our part. The defendant, who is an attorney *456of long practice and repute, was apprised of the constitutional disqualification of the justice presiding before the order "was granted. The question was presented and he elected to obtain and enter the order and take his chances. 'He is not surprised and there is no inadvertence. .....
The pith of the controversy is that an order of reference was granted which was of' no force whatever. It assumed to be a court order. It was not. It was'no order. Notwithstanding its invalidity the referee named in that void order has tribd the case, rendered his decision and judgment has been entered thereon. I think the whole proceeding is permeated' with the vice which vitiated the order and that it cannot now be'galvanized into life.
The judgment and order should be reversed, with costs and disbursements of this appeal, and the motion granted to the end that another application may be made at Special Term for a trial of the issues by the court or a referee as may seem advisable.
Hisco'ck, J., concurred.
Order affirmed, without costs of this appeal to either party, and -order directed to be entered upon this decision referring the issues herein to John M. Brainard, Esq., as referee to hear, try and deter-' mine the same, and that such order of reference be entered as of the 31st day of December, 1904, the date of the order of reference pursuant to which said referee tried, heard and determined the said issues.