dissenting:
I should be glad to take the view adopted by my brethren. But I cannot. In Preston v. Morrow (66 N. Y., 452), the Court of Appeals held that were an action is not referable, without consent of parties, a consent to refer to a particular referee did not waive the right to a trial by a court or jury, if the reference agreed upon fell through. The constitutional right to a trial by jury ivas waived, only in a qualified manner, by the consent to refer to a certain person designated. If the reference to that person failed, then the constitutional right was not waived.
So it seems to me that the court has, in this respect, no greater power in an action of this present kind, than it would have had, if the action had been commenced in the ordinary manner. The section of the statute (2 It. S. [m. p.], 89, § 37), giving the court power to appoint other referees, must be limited to those actions which may be referred without consent, and to cases where parties consent to a new referee, and must not bo construed to deprive the parties of a right to a trial by jury when they have not waived it.
Order affirmed, with ten dollars costs, and printing disbursements.