Barnes v. Midland Railroad Terminal Co. — 144 A.D. 795

Majority

p. 795

Sarah H. Barnes and Others, Appellants, v. Midland Railroad Terminal Company, Respondent.

Second Department,

May 26, 1911.

Headnote

Court — powers of Special Term — costs in suit in equity tried before referee.

Where a referee appointed to hear, try and determine the issues in a suit in equity has made a report directing an entry of judgment without awarding costs, the Special Term has no power to grant a motion sending the report back to the referee With direction to pass upon the question of costs, for such order would alter the adjudication which can only be reviewed upon appeal.

p. 796

Appeal by the plaintiffs, Sarah H. Barnes and others, from an interlocutory judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county ■ of Richmond on the 20th day of March, 1911, upon .the report of a referee in so far as such judgment refers the taking of. the account to the referee rather than directs him as referee to take the account and pass on the question of costs, and also from an order entered in said clerk’s office on the 20th day of 'March, 1911, denying the plaintiffs’ motion to send the report back to a referee.

John Brooks Leavitt [Albert H. Atterbury with him on the-brief], for the appellants.

George D. Beattys [Lawrence W. Widdecombe with him on the brief], for the respondent. •

This equity action was referred to a referee to hear, to try and to determine. The learned referee made findings of fact, and conclusions of law, and directed that judgment be entered - accordingly. It was decided that the plaintiffs were éntitled to judgment for certain specified equitable relief and to recover such damages as could be proved on an accounting to have been sustained by reason of the acts of the defendant for which the said equitable relief was afforded by the report, and that it be referred to a referee “ to ascertain' and report to the Court the amount of any damage so sustained by the plaintiffs or either of them.” No provision'was made for costs. A motion was thereafter made to the Special Term that the report be sent back to the referee and that he be directed to proceed with said trial and pass upon the question of costs and take the account therein mentioned. The learned Special Term denied the motion upon the ground of lack of power, and this appeal is from the order thereupon made. The sole question that we now determine is as to the correctness of the disposition made of the said motion, without expression as to the right of the plaintiffs to costs upon any further judgment that may be entered herein.

We think that the learned Special Term was right. In

p. 797

McLean v. Stewart ( 14 Hun, 472 ) the court, per Hardin, J., say: “ The case of Stevens v. Veriane( 2 Lans. 90 ) was one where the referee in an equity action had passed upon the question of costs. Judge Mullin said: ‘ To alter the adjudication as to costs, upon motion, after judgment, is to vary the judgment, and this can only he done by a court authorized to revise the judgment on appeal, or to review the cause. A judge at Special Term has no • such power.’ (See Beattie v. Qua, 15 Barb. 182 .) ” (See, too, Kiernan v. Agricultural Ins. Co., 3 App. Div. 26 ; Sabater v. Sabater, 7 id. 70 ; Kennedy v. McKone, No. 2, 10 id. 97 .)

The interlocutory judgment must he affirmed, with costs.

Hirschberg, Burr, Woodward and Rich, JJ., concurred.

Interlocutory judgment affirmed, with costs.

Cases cited

Stevens v. Veriane 2 Lans. 90 N.Y. Sup. Ct. p. 797