Decker v. Canzoneri

Bliss, J.

(dissenting). In real estate mortgage foreclosure actions it has been the accepted practice for many years for a justice of the court, sitting at Special Term, after either taking proof of the amount due on the mortgage or upon the incoming of the referee’s report showing such amount, to grant judgment of foreclosure and sale and in this judgment to appoint a referee to conduct the sale. It was the obvious intention of the Legislature in adding the new section 117 to the Judiciary Law by chapter 854 of the Laws of 1935, to broaden the jurisdiction of official referees and thus unburden the court as well as eliminate unnecessary motions and delays. This statute gives an official referee in an action, in addition to certain other general powers under section 469 of the Civil Practice Act, jurisdiction to proceed with the same power and authority as a justice sitting at Special Term. The Legislature intended that the official referee should do those things which were usually done by the Special Term. *74To hold that such referee might grant the judgment of foreclosure and sale but not direct the maimer of the sale is placing too narrow a construction upon section 117 of the Judiciary Law and one clearly not intended by the Legislature. This act does not deprive the Supreme Court of any of its jurisdiction. The court may, in its order of reference, restrict the action of the official referee and retain unto itself the right to direct the manner of sale, including the appointment of a referee to sell. This legislation does not violate our State Constitution. (See Matter of Brock, 245 App. Div. 5; State Const, art. 6, § 20.)

The order should be affirmed.

Rhodes, J., concurs.

Order reversed on the law and facts, with ten dollars costs and disbursements, and motion granted, with ten dollars costs, and the clerk of the county of Ulster is directed to enter a proper judgment. The cause is remitted to the Special Term for the appointment of a referee to sell the property.