N. Y. COMMON PLEAS.

#### Emilie Nason agt. Benjamin L. Luddington.

*Referee’s oath*— *in what ma/rmerr mazy he*warned— *Godé of Givil Proaedwre, section*1016.

The failure of a referee to he sworn; in pursuance of the provisions of section 1016 of the Code of Civil Procedure, is a *mere irregulm'ity*and *not a,-jwrisdictional defect*and may he *waived hy implication (Affirming, S, 0., 55 Sow.,*343).

*General*Term,

November, 1878.

*Before*Daly, *Ch. J., and*Van Hoesen, *J.*

*Theodore*Arnold, for plaintiff.

*Geo. W.*-Lord, for defendant.

Van Hoesen, *J.*

The Revised Statutes (2 *R. S.,*384, *sec.*44) provided that before a referee should procéed 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, re-enacted by section 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*agt. *Board of Supervisors*(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 Watsob) decided, that by appearing before the *173referee and proceeding without objection the plaintiff waived the irregularities. Afterwards, in *Keator*agt. *Ulster and Delaware Plankroad Company*(7 *How.*Pr., 41), judge Harris held that, notwithstanding section 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*agt. *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 ofJ section 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 *174irremediable, 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 easily corrected by the court, where the facts are not in dispute but appear upon the pleadings, there is no occasion for his being sworn when he decides nothing but questions of law. 1 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 or represented by counsel, what 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 inquire 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. Hay, more. If the appellant be correct in his construction of section 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 beginning of the trial, that he *175would 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 section 1016. The adverb *expressly*adds 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 Section 1016 be different from what it now is? The word *expressly*adds to the turgidity, riot to the meaning, of the language. Section 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 *acquiescence of a parly who might take admamtage of am 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. Section 266 of the Code of Procedure was, except in the use of the word “ expressly,” almost the same in phraseology as section 1016 of the Code of Civil Procedure. Section 266 provided that a trial by jury could be waived by written consent filed with the clerk, or by oral consent in open com’t entered in the minutes. If the section had read “ *expressly warned*” 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*agt. *Keteltas*(17 *N. Y.,*498), *176that a trial by jury would be waived if a party, without objecting, proceeded to a trial of the action by the court. In *McKeon*agt. *See*(51 *N. Y.,*300) it was held that a jury trial would be waived 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 section 1016, seem to me to be controlling as to the construction of that section, and they leave no doubt that there may still be a waiver, by implication, of the referee’s oath.

Note. — The old Code laid down the general rule that referees must be sworn. This was also the rule under the Revised Statutes. Under the former practice, *i. e.,*the Revised Statutes and Code of Procedure, it was held that although a referee ought to he sworn the oath could he waived *177by implication. Before the 'Code of Civil Procedure went into effect it was held that any action by the parties which could properly be construed into a waiver, express or implied, dispensed with the requirement of an oath. But in the *new Code*the legislature undertook to declare precisely what sort of a waiver should be necessary to relieve the referee from his obligation to be sworn. *It must be express;*it may be in writing; it may be oral; but in the latter case it *must be enterred in, the referee’s minutes.*It would seem that if the word *must*means any thing it means that an entry of such oral waiver is absolutely requisite to make it effectual. Now, when the law thus specifies several particular ways of taking a case out of the operation of a general rule are not other methods excluded ? And when that law omits to mention the method most in vogue before its passage, is not the omission strong evidence of an intent to do away with it! It would seem so to us. It is to be hoped that the court of appeals may be called upon at an early day to decide upon this interesting point. We believe that the doctrine of waiver, as applied to this requirement, tends to laxity in the administration of justice, and has given rise to much vexation which would be avoided by a positive rule of law that the oath should be taken before the referee could acquire any jurisdiction whatever. [Ed.

*176There are special reasons why the law of waiver 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 *subjucbice*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 toward an appeal from the judgment. 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*agt. *Small, 4 Paige,*288).

The order appealed from should be affirmed, with cpsts and disbursements for printing.' *

Halt, Oh. J., concurred.