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Morgan v. Taylor

15 Daly (N.Y.) 302 Court N.Y.C.P. Decision date 1889-06-03 English

Delivered by Bookstaver, J.

Contents

Majority

p. 302
William F. Morgan, Respondent, against Catherine Taylor Appellant, and John J. Kierst et al., Respondents.
(Decided June 3d, 1889.)

Headnote

After the close of a trial before a referee, and after his report has. been delivered and filed, and the time for filing, exceptions thereto has expired, the court at Special Term has not power-to send back the report for the purpose of taking further testimony and making additional findings.
Appeal from an- order of this court denying a motion to send back the report of a referee for the purpose of taking further.testimony and making additional findings.
The facts are stated in the opinion.
A. & T. B. Wakeman, for appellant.
B. C . Chetwood, for respondents.

The trial before the referee -had been closed; his report had been delivered and was on -file in this court when the motion was made; and the time for the

p. 303
appellant to file exceptions had expired. The application was in reality to re-open the trial and put in further testimony, as well on the questions theretofore tried as upon other matters. This would, in effect, be awarding a new trial by the Special Term, which it has no power to do, as has been repeatedly determined (Bamc v. Neuss, 2 Civ. Pro. Rep. 185; Gardiner v. Schwab, 34 Hun 582 ; Armstrong v. McKelvey, 39 Hun 218 ). The former practice, which allowed the referee to make additional findings of fact or conclusions of law on the settlement of the case, did not permit the practice contended for on this motion; and it was decided in Gormerly v. McGlynn ( 84 N. Y. 284 ), that section 1023 of the Code was not intended to permit an application for findings or compel a decision upon them after the final disposition of the case ; thus abrogating the rule and the practice as it theretofore had existed in regard to additional findings on the settlement of the case.

The motion was therefore properly denied, and the order should be affirmed, with costs..

Larremore, Ch. J., and Allen, J., concurred.

Order affirmed, with costs.

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