A justice at Special Term originally appointed a referee to hear and report upon a receiver’s account. The referee, apparently upon representation by the attorneys for one party that both sides desired a speedier hearing than it was practical for the referee to give, sent the cause back accompanied by a certificate reading as follows:
“ This case was referred to me by order dated June 6, 1927? but no order of reference was served upon me until October the 4th, 1927, by which time my calendar was so congested that the case could not be taken up except out of its order until the date set, namely, January 11th, 1928, which was not satisfactory to the attorneys.
“ Therefore at their request I am permitting them to go back to the Court which sent the reference to me.
“ Respectfully submitted,
“ E. G. WHITAKER,
“Official Referee, Supreme Court.
“ Dated, New York, November 29th, 1927.”
A motion was thereupon made before another justice to appoint a new referee. This motion was granted and a new referee appointed, instead of the matter being referred to the justice before whom the motion was pending. As the original order appointed a referee to hear and report and not to hear and determine, the matter was still pending before the justice who made the original order and he only had jurisdiction thereof. (Stillman v. Stillman, 119 Misc. 868; affd., 204 App. Div. 845.)
The order appealed from should be reversed, with ten dollars costs and disbursements and the motion denied, with ten dollars costs, and the matter referred back to the justice originally making the order of reference for such disposition as he deems proper.
Present — Finch, McAvoy, Martin and Proskauer, JJ.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs, and matter referred back to the justice originally making the order of reference for such disposition as he deems proper.