p. 960William Morgan, Plt’ff and Resp’t, v. Catherine Taylor et al., App’lts.(New York Common Pleas, General Term,Headnote
1. Practice—Report or referee—Piling or—Time to rile exceptions— Arter time has expired report cann'ot be sent back to take further testimony.After the report of a referee is filed in court and the time for the appellants to file exceptions has expired, a motion to send hack the report of the referee for the purpose of taking further testimony and making additional findings was properly denied by (he special term. This would, in effect, re-open the trial and allow further testimony, not only upon the questions theretofore tried, but upon other matters. Thus it would be reallyawarding a new trial by the special term, which it has no power to do.
% Same—Additional findings—Code Civ. Pro., § 1023—This section DOES NOT PERMIT APPLICATION FOR FINDINGS AFTER FINAL DISPOSITION OR CASE.
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.' 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.
Appeal from an order at special term denying a motion to send back the report of the referee for the purpose of taking further testimony and making additional findings.
Wakeman & Campbell, for app’lts; B. C. Chetwood, for resp’t.
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 appellants to file exceptions had expired. The application
p. 961was 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 id., 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 et al. ( 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., concur.