Woodward v. Musgrave. city, county and State of New York. Upon said motion. coming on to be heard the plaintiff submitted affidavits tending to contradict the affidavit of the defendant, and to sustain the contention that the defendant was a non-resident. The court thereupon made an order that the question of the defendant's residence at the time of the issuing of the attachment be referred to a referee, and such order required the referee to report the proof taken by him, together with his opinion thereon, to the court, with all convenient speed. The parties appeared before the referee and the defendant claimed that the plaintiff had the affirmative, and should commence the proceedings. The referee having so held, the plaintiff declined to proceed with the reference or to produce any witnesses, and took an exception. The referee thereupon reported the foregoing facts, and that, as in his opinion, the plaintiff had failed to establish the defendant's non-residence, the attachment should be vacated. It may be observed in passing that the question of vacating the attachment had never been referred to the referee, and he had no authority to report thereon. The simple question referred to him was the question of the defendant's residence at the time of the issuing of the attachment. Thereupon, on November 24, 1896, the defendant procured an order to show cause why the attachment should not be vacated and set aside on the ground that the defendant was a resident of the State of New York at the time of the issuance thereof, and for the reason that the plaintiff had failed to make out the non-residence of the defendant, as directed by the referee, which question was referred to said referee, and for such other relief as might be proper. This motion came on to be heard on December 21, 1896, the court having before it all the papers which were used upon the motion of August 5, 1896, together with the proceedings before the referee and the affidavit upon which the order to show cause of November 24 was obtained; and it was ordered that said motion to Woodward v. Musgrave. vacate the attachment "be at this time, and upon the papers now presented, denied, with leave, however, to the defendant to renew said motion upon the coming in of the referee's report provided for by this order." It was further ordered that the affidavits and papers upon which said attachment was granted, together with those which were before the court upon the previous motion to vacate the attachment, and which were recited in the order of September 17, 1896, be referred back to the same referee, with the right to either party to examine the affiants, and to introduce such other proof as to the defendant's residence as they might be advised. The referee was ordered to take such proof as might be offered and report the same, with his opinion thereon, and it was ordered that the affirmative of the question referred to the referee be with the plaintiff. The plaintiff thereupon appealed from such order of December 21, 1896, and from each and every part thereof, excepting that part of the order which orders that the motion to vacate the attachment be denied. Held, that that part of the order directing a reference should be reversed. It will be seen that the order under consideration does not refer any question of fact to the referee or direct him to take proof upon any question of fact. Certain affidavits and papers are referred back to the referee and he is directed to take such proof as may be offered and to report the same with his opinion thereon-the proof not being confined to any particular question or subject. It is to be observed that, in references upon motions the proceedings before the referee do not supersede the affidavits which are before the court upon the motion. Such references are only made for the purpose of giving the parties an opportunity to cross-examine affiants and for the introduction of additional testimony upon the question involved in the motion. Therefore, when neither party offered any additional proof, or asked for the cross-examination of either of the affiants, and the Woodward v. Musgrave. case came back to the court, the court was bound to decide the motion upon the papers then before it, being the papers which were before the court upon the original motion. This the court apparently did and denied the motion to vacate the attachment, as it would seem it was its duty to do from the nature of the proof which was then before it. The order of reference was entirely unnecessary in the first instance and was improper. Such orders should not be made except in extreme cases where large interests are involved, and it is impossible to reach a conclusion upon the papers before the court. The expenses of such references are always great-in many instances largely exceeding the value of the real subject-matter in controversy. This expense is necessarily a great hardship which is imposed upon the defeated party and sometimes upon the successful party. It would seem that the court upon the papers before it should have absolutely denied the motion to vacate the attachment, and that the order of reference was ill-advised and must be reversed. Opinion by VAN BRUNT, P. J. WILLIAMS, PATTERSON, INGRAHAM and O'BRIEN JJ., concurred. Order so far as appealed from reversed, with ten dollars costs and disbursements. James J. Allen, for the plaintiff, appellant. Franklin Bien, for the defendant, respondent. Note on Reference of Issues Arising on Motions. NOTE ON REFERENCE OF ISSUES ARISING ON MOTIONS. Section 1015 of the Code of Civil Procedure provides that: "The court may upon its own motion, or upon the application of either party, without the consent of the other, direct a reference . . . to determine and report upon a question of fact, arising at any stage of the action, upon a motion, or otherwise, except upon the pleadings." Under the broad power given by this section there has never been any doubt that the court had power to appoint a referee to take testimony and report as to disputed questions of fact arising in any proceeding incidental to the action. But the courts do not look upon this procedure with favor, and as was said in Martin v. Hodges, 45 Hun, 38, 40: "It is not the usual practice to order a reference in such case, and we think the practice should not be followed, except in extraordinary cases, where the court is unable to determine the facts from the papers read upon the motion." That was a motion to set aside a judgment alleged to have been taken by default, on the ground that there had been no default and the answer had been served in time. The question of fact was as to the exact day upon which the complaint was served. The court also held in that case that there could only be $10 motion costs and disbursements allowed where the court ordered a reference on a motion, and that Rule 30 of the General Rules of Practice, requiring exceptions to be filed to the report of a referee in a reference other than for the trial of the issues in an action or for computing the amount due in foreclosure cases, did not apply to a reference on such a motion. Without regard to the provisions of the Code the court has a right to order a reference to take proofs upon matters upon which it desires fuller information. Dwight v. St. John, 25 N. Y. 205; People ex rel. Delmar v. St. Louis & San Francisco Ry. Co., 44 Hun, 552. Such a reference is merely for the purpose of aiding the court in determining the questions involved in the motion. The report of the referee is in no wise binding upon the court, and it has power to disregard it and draw its own conclusions from the evidence. Marshall v. Meech, N. Y. 140. 51 Such a reference is proper on a motion to set aside a judgment on the ground that an attorney was not author Drennan v. Boice. Vilas v. Plattsburgh & ized to appear for one of the parties. Montreal R. R. Co., 123 N. Y. 440. the service of a paper in the action. 7 Supp. 833; S. C., 27 St. R. 895. Or on a motion to continue an injunction. Stubbs v. Ripley, 39 Hun, 620; Continental Steamship Co. v. Clark, 7 Civ. Pro. R. 183. Or upon a motion to cancel a judgment entered upon confession without action as having been paid. Dwight v. St. John, 25 N. Y. 203; Demelt v. Leonard, 19 How. Pr. 140; s. C., 11 Abb. Pr. 252. Or to satisfy a judgment, where it appeared that through a mistake two records had been made and two judgments were entered upon one claim. Pendleton v. Weed, 17 N. Y. 72. To discharge an order of arrest. Stelle v. Palmer, 7 Abb. Pr. 181. To vacate an attachment. Burnett v. Snyder, 41 Super. Ct.(J. & S.) 342. On a motion to compel an attorney to pay over moneys collected. Gillespie v. Mulholland, 12 Misc. 44; Barber v. Case, 12 How, Pr. 351. Or to punish parties for contempt for alleged disobedience of an injunction order. Aldinger v. Pugh, 57 Hun, 181; s. C., 19 Civ. Pro. R. 91; People ex rel. Alexander v. Alexander, 3 Hun, 211. Or upon a motion where there are conflicting claims to moneys in the hands of the sheriff. Patten v. Bullard, 3 St. R. 735. Or upon a motion for a mandamus to compel an inspection of corporate books. People ex rel. Delmar v. St. Louis & San Francisco Ry. Co., 44 Hun, 552. DRENNAN v. BOICE. Supreme Court, First Department, Appellate Term; March, 1897. Election of remedies; judgment against agent; undisclosed principal.] Where one party to a contract proceeds to judgment against another party, after discovery of the fact that the latter was acting as agent for an undisclosed principal, he thereby elects to hold the agent alone, and cannot maintain a second action against the principal.* *The doctrine of this case is similar by analogy to the rule of law that where one dealing with an agent and knowing him to be an agent charges the agent personally and depends exclusively upon |