Kennedy v. McKone — 41 N.Y.S. 577

Majority

p. 577

(10 App. Div. 577.)

KENNEDY et al. v. McKONE.

(Supreme Court, Appellate Division, First Department.

November 13, 1896.)

Headnote

Reference—Award of Costs by Referee—Review.

The decision of a referee appointed awarding costs in accordance with his conclusions of law is reviewable only on appeal, and not by motion at special term.

Appeal from special term, New York county.

Action by John Kennedy and another against Joseph F. McKone to foreclose mechanics’ liens. From an order denying a motion to vacate the taxation and bill of costs in favor of defendant, Mc-Kone, and to direct a taxation of the costs in accordance with the referee’s report and the former taxation, plaintiffs appeal. Reversed.

Argued before VAN BRUNT, P. J., and BARRETT, RUMSEY* O’BRIEN, and INGRAHAM, JJ.

Artemas B. Smith, for appellants.

John E. Eustis, for respondent.

The question presented by the motion which resulted in the order appealed from was decided by the referee. He found all the facts necessary for the decision of the question, and upon those facts he awarded costs in accordance with his conclusions of law. The court at special term could not overrule the referee with regard to these, any more than with regard to any other of his conclusions. His decision upon all questions presented to him could only be reversed by an appeal from the judgment entered upon his report. The report of a referee appointed to hear and determine the issues has the same force and effect, in all respects, as the decision of a justice of the court after a trial at special term. It follows that the motion should not have been entertained. The order appealed from should therefore be reversed, with $10 costs and disbursements of the appeal, and the motion dismissed, with $10 costs. All concur.