#### Robert Gill, Plaintiff, *v.*William Clark, Defendant.

(Supreme Court, Onondaga Special Term,

April, 1900.)

Keferee — Extension of time to report “ in the near future ” — Terminating reference.

An action was finally submitted to a referee on August 18, 1899. He not having made a report, both counsel on January 18, 1900, wrote him a letter to refresh his recollection that the case had been submitted to him “ and procure a decision in the near future.” On February 17, 1900, the plaintiff’s attorneys served notice to end the reference. On March 3, 1900, the referee reported in favor of the defendant

Held, that the letter of January 18th operated to extend the referee’s time- to report beyond the original sixty days and permitted him to report “ in the near future ”, but that his delay from January 18th' until February 17th was excessive and that the plaintiff had a right on February 17th to end the reference!.

Motion to set aside and vacate a judgment in favor of the defendant, entered upon the report of a referee, and also to vacate said report.

Rogers *&*Atwell, for motion.

A. E. Kilby, opposed.

Andrews, W. S., J.

This action was tried before a referee and was finally submitted to him for his decision on August 18, T899. He made no report, and on January 18, 1900, the counsel for the respective parties joined in a letter to him, in which they say that they had long ago submitted the case of Gill v. Clark, and they thought they would drop him a joint note to refresh his recollection “ and procure a decision in the near future.” Bo answer was received, and on February 17, 1900, the plaintiff’s attorneys served upon defendant’s attorney a notice ending the reference, in pursuance to section 1019 of the Code of Civil Procedure. The latter replied that such practice was irregular, and that in view of the joint note of January eighteenth, a definite time should be given *338the referee within which to make and file his report. On March first the plaintiff’s attorneys notified the referee that the reference had been terminated. On March third the referee made and filed a report in favor of the defendant.

The question at issue is, therefore, whether the reference was ended by the notice of February seventeenth?.

It is unquestionably true that section 1019 was enacted for the benefit of parties to litigation, and may be waived by them. This may be done not only by formal stipulation, but by such conduct as in fairness estops the litigant from taking advantage of the strict letter of the law. Dwyer v. Hoffman, 39 Hun, 360.

Such waiver may be for an indefinite time, as in Ballou v. Parsons, 67 Barb. 19. Here, as appears from the papers, the referee was allowed such time as he desired or found necessary. In such a case, the reference may not be ended without giving reasonable notice.

Or the waiver may be for a fixed period. When this has expired, the notice may be served at any time. Patterson v. Knapp, 83 Hun, 492.

In the case at bar, it must first be determined whether the letter of January eighteenth was equivalent to an agreement to extend the time of the referee. If so, was the extension an indefinite one? If not, had the time given expired on February seventeenth?

I think the letter did operate as an extension of time. In this matter the interests of the referee are to be consulted as well as those of the parties. His compensation depends upon the filing of his report before the reference is ended. When the sixty days have expired, in the absence of any request, he might well hesitate, therefore, to continue his labor upon a case before him. But upon the receipt of such a letter as .the one here considered, he might fairly believe that his delay was forgiven and that he might proceed with safety.

Yet the extension was not an indefinite one. The suggestion was that a decision should be procured “in the near future. Neither he nor the parties could have understood that the intention was to give an unlimited time. The language was not precise. It did not limit the referee to any fixed number of days. But it did limit him to “ the near future.” Consequently, when this time had expired, either party might terminate the reference.

It is, of course, difficult to say exactly what was meant and what *339the referee had the right to understand was meant by these words. Still I think that twenty-eight days was a delay beyond that justified by the joint note, and that on February seventeenth the extension given had expired.

If this be so, the reference was properly ended, and the subsequent report of the referee, and the judgment entered thereon, were irregular.

The motion is, therefore, granted, with ten dollars costs to plaintiff to abide the event.

Motion granted, with ten dollars costs to abide event.