Thompson agt. Krider. SUPREME COURT. THOMPSON agt. KRIDER. Either party may notice and bring on the trial of a cause before a referee, the same as if the trial was before the court. Consequently, where both parties notice the cause, neither can charge delay or default upon the other, for not bringing on the hearing. Steuben Circuit and Special Term, May, 1853. This case was referred to a sole referee by stipulation between the attornies for the respective parties, and an order of the court entered thereon. The cause was noticed for trial by both parties, to come on before the referee at the American Hotel in the village of Dansville, in the county of Livingston, on the 27th day of April last, at ten o'clock in the forenoon, the time and place agreed on by stipulation between the attornies, for the trial: at which time and place, the parties, with their counsel and witnesses appeared; and the referee was also present, but was engaged as referee in the trial of another action which was expected to occupy the whole of that day. After remaining in attendance until some time in the afternoon, and there being no prospect of being able to bring on the trial that day, the plaintiff dismissed his witnesses, and the trial was not moved in pursuance of the notice. The affidavit on the part of the defendant states among other things, that the referee refused to proceed to the hearing at the instance of the defendant's counsel, for the reason that, as he understood the practice, the defendant could not notice for trial or move a cause before a referee. It appears that both parties were ready for trial, and the plaintiff could not move it on during the day mentioned, by reason of the engagement of the referee on the trial of the other action. It also appears that the plaintiff's counsel, in the course of the afternoon of the same day, offered the defendant's counsel to postpone the trial to such time as would suit the convenience of both parties, which offer was refused. A motion is now made on the part Thompson agt. Krider. of the defendant, for an order, requiring the plaintiff to pay the defendant his costs and disbursements of preparing for trial and attending before the referee, with costs of the motion. S. HUBBARD, for Defendant. WELLES, Justice.-The question presented in this case, and upon which the decision of the motion must turn, is whether, in a case where the issue has been referred to a referee to hear and determine, it is competent for the defendant to notice the action for trial, and bring the same to a hearing before the referee. Both parties noticed the cause for trial, and if the defendant had the right to do so, he was, manifestly, as much in default as the plaintiff, in not bringing on the hearing; and consequently has no right to ask for costs against the plaintiff, (see rule 20 of August, 1852.) That the referee would not have allowed him to bring it on, does not change the principle, as the plaintiff is not responsible for the erroneous opinion of the referee. The Code has made no express provision on this subject. By section 256, either party may give notice of trial. This however, I think, was intended primarily to refer to trial by jury, or by the court; because, in the same section, and in immediate connection with the provision, it is declared that "the party giving the notice shall furnish the clerk, at least four days before the court, with a note of the issue," &c., and that "the clerk shall thereupon enter the cause upon the Calendar," &c. This can hardly be understood as applying to the case of a trial before a referee,-where no note of issue was ever heard of, and where there is no clerk or Calendar and so of section 258, which is a part of chap. III, of Tit. VIII, of part 2d, entitled, "Trial by jury," authorizing either party giving notice to bring the issue to trial, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, to proceed with his case and take a dismissal of the complaint, or a verdict or judgment as the case may require. This clearly has no reference to a trial before a referee. Thompson agt. Krider. But section 272 provides that "the trial by referees is conducted in the same manner, and on similar notice as a trial by the court." Inasmuch as there is no other authority to be found in the Code for either plaintiff or defendant to notice the trial before a referee, I think it reasonable to conclude, that the intention was to allow either party to give notice, and bring the issue to trial before the referee. Justice ALLEN So held in Williams agt. Sage, (1 Code Rep. 358, N. S.,) remarking that such had been the practice under the Code, and that its convenience commended it to favor, and I agree with him that it should be upheld, unless clearly unauthorized. There are other considerations tending to show that such was the intention of the law-makers, but I forbear to refer to them. There is nothing in the case of Holmes agt. Slocum, (6 How. Pr. R. 217,) in conflict with these views. It is merely intimated in that case, which did not involve this question, that sections 256 and 258 did not apply to a trial by a referee; which I think is true, excepting so far as § 272 has made § 256 applicable. But for the reasons mentioned, I am of the opinion that either party may notice and bring on the trial before a referee, the same as if the trial was before the court; and that where the defendant as well as the plaintiff notices the case for trial, he cannot charge delay or default upon the plaintiff for not bringing on the hearing. The motion is therefore denied; but as the question has not been regarded as settled no costs are allowed for opposing the motion. Allen agt. Compton. SUPREME COURT. ALLEN agt. COMPTON. Where an amended answer is served for delay, and at so late a period as to throw the cause over the circuit, it may be treated as a nullity. Tompkins Special Term, May, 1853. This was a motion on the part of the plaintiff, to strike out the defendant's amended answer, on the ground that it was for the purpose of delay and to cause the plaintiff to lose the last March circuit, for which term the cause was noticed for trial, at the time the amended answer was served. The cause was put at issue by the service of a reply to the original answer, on the 20th day of February last, and on the same day the defendant's attorney was served with notice of trial and inquest, for the 14th of March; and on the 9th of March the amended answer was served. The plaintiff's attorney disregarded the amended answer, and took an inquest at the circuit, and now moves to strike out the amended answer, under the 172d section of the Code. In opposition to the motion, the defendant's attorney swears that his client informed him of two grounds of defence at the time of his retainer, viz: a set off, and want of consideration for the note sued on, but he concluded that the set off would be sufficient, and therefore did not include the other defence in the original answer, but when the plaintiff denied the set off in his reply, he concluded it was best to amend, by inserting the other defence in his answer. S. B. CUSHING, for the Motion. D. J. SUNDERLIN, Opposed. SHANKLAND, Justice.-The defendant's counsel contends that the plaintiff's counsel was irregular in treating the amended answer as a nullity; and that he should have got rid of it by a motion, prior to taking an inquest under § 172; and also that having treated it as a nullity, this motion is unnecessary, &c. As no reported case has been found, deciding what practice Allen agt. Compton. should be adopted in a case where the amended answer is put in, for delay, and will cause the loss of a circuit, I shall dispose of it in analogy to the practice which prevailed under the old rule in respect of demurrers put in for delay. Then, if the plaintiff replied to the defendant's plea, and took issue on the same, and noticed the cause for trial, and the defendant demurred to the replication in bad faith, or for delay, the plaintiff could disregard it, and proceed to trial. (14th J. R. 345; 1 Cow. R. 152 and 154; 18 W. R. 656; 22 W. R. 623; 4 Hill R. 56.) The 172d section says, 66 that any pleading may be once amended by the party, of course without costs, and without prejudice to the proceedings already had, at any time before the period for answering it expires, or it can be so amended at any time within twenty days after the service of the answer or demurrer to such pleading, unless it be made to appear to the court that it was done for the purpose of delay, and the plaintiff or defendant will thereby lose the benefit of a circuit or term for which the cause is or may be noticed, and if it appear to the court that such amendment was made for such purpose, the same may be stricken out, and such terms imposed as to the court may seem just." If in this case it was necessary to move to strike out the amended answer before the plaintiff could proceed to trial, he would lose the benefit of the circuit, as there was not time to serve the proper notice for that purpose. And in all cases where amended answers are put in for delay, and to throw a cause over the circuit, they are served at so late a day as to prevent a new notice of trial to be served for the circuit in due season, I am of opinion that the party who puts them in, or any amended pleading for delay, is entitled to no favor, and that such a pleading may be treated as a nullity. If it shall prove to have been interposed in good faith, the default will be set aside. No rights are lost to either party by this practice, and it is the only mode the plaintiff can take to save the circuit. By obliging the plaintiff to move to strike out the amended pleading, as seems to be contemplated by this section of the Code, the defendant can answer the motion by showing his |