#### Emilie Nason, Respondent, against. Benjamin L. Ludington, Appellant.

(Decided December 2d, 1878.)

The omission ot a referee, before proceeding to hear testimony in a cause, to take the oath required by statute is a mere irregularity, and a party proceeding with the reference without demanding that the referee take the required oath will be deemed to have waived the irregularity. The former rule to this effect has. not been ¿hanged by section 1016 of the Code of Civil Procedure, except where there are infant parties or parties not personally present nor represented by counsel.

Appeal from an order of this court made at special term denying a motion to set aside the report of a referee.

The facts are stated in the opinion.

*Creo. W.*Lord, for appellant.

*Anthony R.*Lyett, for respondent.

Van Hoesen, J.

The Revised Statutes (2 R. S. 384, sec. 44) provided, that before a referee should proceed to hear any testimony in the cause he should be sworn faithfully ■ and fully to hear and examine the cause, and to make a just and true report according to the best of his understanding. That provision of the Revised Statutes is, in substance, reenacted by sec. 1016 of the Code of Civil Procedure. It was on several occasions construed by the Supreme Court, and its meaning was generally understood by the profession. In *Whalen*v. *The Supervisors of Albany*(6 How. Pr. 278), where a motion was made to set aside a report for irregularity, on the ground that the referee had not been sworn in the cause, and on the further ground that no order of reference had been entered, the court (consisting of Justices Harris, Amasa J. Parker, and Watson) decided that, by appearing before the referee and proceeding without objection the plaintiff waived the irregularities. Afterwards, in *Keator*
      *150v. *Ulster and Delaware Plank Road Co.*(7 How. Pr. 41), Judge Harris held that notwithstanding sec. 270 of the Code only provided that causes might be referred upon the *written consent*of parties, it was competent for them to agree orally in open court to a reference; and he reiterated his opinion that parties waived the right to require the oath of a referee if they proceeded before him without objection. (See, also, *Ludington*v. *Taft,*10 Barb. 447.) Upon authority, therefore, it is settled that by the former law it was possible for the defendant in this case to waive, by implication, his right to object to the referee’s report; and an implied waiver of the oath is still possible unless the last three sentences of sec. 1016, which are new, have introduced a rule heretofore unknown to the courts. Those sentences provide, that where all the parties whose interests may be affected are of age and are present they may expressly waive the swearing of the referee, either by written stipulation or by an oral consent entered by the referee in his minutes. It is contended by the counsel for the appellant that the effect of the new provision is to do away with the old rule, that a waiver of the oath may be implied from proceeding before the referee without a demand that he be sworn. It is settled that the omission of the referee to take the oath is an irregularity, and nothing more. The referee derives his power from the order of the court, and may adjourn the cause, or do many other official acts, without being sworn. It is for the purpose of impressing him with a sense of responsibility in performing the judicial duty of taking the testimony and deciding upon it, that the law requires the referee to be sworn. It would seem that if no witness be called, and no documentary evidence be offered, the referee need not take the oath. He might, unsworn, dismiss a complaint as fatally defective in substance, or order judgment upon the pleadings. As he has, to some extent, the powers of a jury, and as the evil he might do is irremediable, the law seeks to protect litigants by requiring the referee to act under the solemnity of an oath whenever deciding questions of fact; but as any erroneous legal conclusions which he may announce are *151easily corrected by the court, where the facts are not in dispute, but appear upon the pleadings, there is no occasion for his being sworn where he decides nothing but questions of law. If the taking of the oath were essential to the jurisdiction of the referee, of course there could be no implied waiver of that ceremony. But, as has already been said, the failure of the referee to be sworn is a mere irregularity, and not a jurisdictional'defect. The primary object of the new provisions appears to be to protect infants and absentees. Where there are infant parties, or where there is a party not personally present nor represented by counsel, the oath of the referee, where testimony is to be taken, cannot be dispensed with. There can be no waiver by one who is incapable of giving consent, or by one who is not represented, and who knows nothing of the irregularity. But where a party is of full age, and present in person,, tir represented by counsel, wdiat reason is there why he or his legal adviser should not ask the referee to be sworn? What principle of ethics or of law requires that a defendant and his counsel, after participating, day after day, in a long-contested trial, without troubling themselves to enquire whether the referee has been sworn', should be permitted, when they ascertain that the report is against them, to spring an objection that the required oath has not been taken ?

Ought a party thus to be allowed to speculate on the chances of a decision in his favor? This is the result to which we must be brought if the argument of the appellant be sound. Nay, more, if the appellant be correct in his construction of sec. 1016, we should be compelled to set aside a referee’s report where the oath had not been expressly waived by a written stipulation, or by an oral consent entered on the referee’s minutes, even though it should be conclusively proved that the referee had stated to the parties at the commencement of the trial that he would be sworn if either party desired it, and that neither party had taken notice of the referee’s offer. It is argued that the words of the new Code are explicit and peremptory. The oath maybe *expressly*waived, says sec. 1016. The adverb *expressly*
      *152adds nothing to the meaning or to the strength of the language. It is the merest tautology. A written or an oral stipulation that the oath be waived is necessarily an *express*waiver of the oath. If the codifier had contented himself with saying that the oath might be waived by a written consent, or by an oral consent entered in the minutes, and had left out the word “ expressly,” wherein would the meaning of sec. 1016 be different from what it now is ? The word *expressly*adds to the turgidity, not to the meaning of the language. Sec. 1016 means, as I understand it, that an express consent to a waiver of the oath must be evidenced by a written stipulation or by an oral stipulation entered in the minutes. In other words, it is simply making a special application of the general rule, that agreements between attorneys as to the proceedings in an action should be evidenced by a writing. But the rule requiring agreements between attorneys to be in writing never encroached upon the law of waiver. It is one of the maxims of the law, that the *acqxdescence of a party who might talce advantage of an error obviates its effect.*The law of waiver has kept its place side by side with the rule requiring stipulations to be in writing, and there is no inconsistency in maintaining both. Sec. 266 of the Code of Procedure was, except in the use of the word “ expressly,” almost the same in phraseology as sec. 1016 of the Code of Civil Procedure. Sec. 266 provided that a trial by jury could be waived by written consent, filed with the clerk, or by oral consent in open court entered in the minutes. If the section be read “ *expressly*waived,” the meaning would not have been at all changed. Notwithstanding the mode in which the waiver should be evidenced was thus pointed out, the Court of Appeals decided in *Greason*v. *Keteltas*(17 N. Y. 498), that a trial by jury would be waived if a party, without objecting, proceeded to a trial of the action by the court. In *McKeer*v. *See*(51 N. Y. 300), it was held that a jury trial could be waivéd by a party placing his demand for it upon a ground that was untenable. These decisions, which construe a statute almost identical in language with sec. 1016, seem to me to be controlling as to the *153construction of that section, and they leave no doubt that there may still be a waiver, by implication, of the referee’s oath.

There are special reasons why the law of waiyer should be applied to this case. The appellant says in his affidavit that “ it never occurred to me that the referee had not been sworn until at *or about*the time the report was made.” The appellant is himself a lawyer, and was represented by counsel of acknowledged ability. He does not say that he did not know that an oath ought to have been taken by the referee, for undoubtedly he was well aware of the requirements of the law. At what time “ it occurred to .him"’ that the referee had not been sworn he does not clearly state. How long a period is embraced in the expansive term *about*it is impossible to conjecture, but it certainly is possible that whilst the cause was *sub judice*he was canvassing the prospect of setting the report aside if it proved to be unfavorable. Moreover, after the report was made, instead of moving promptly to set it aside, he took a number of steps towards an- appeal from the payment. The rule is that if, after notice of an irregularity, the attorney takes any step in the cause not looking to its correction, the court will not interfere to correct the. irregularity, if merely technical. *(Hart*v. Small, 4 Paige, 288.)

The order appealed from should be affirmed, with costs and disbursements for printing.

Charles P. Daly, Ch. J., concurred

Order affirmed, with costs and disbursements.