In re the Account of Post — 45 N.Y. St. Rep. 689

Majority

p. 689

In the Matter of the Account of Henry A. V. Post, Adm’r.

(Supreme Court, General Term, First Department,

Filed March 31, 1892.)

Headnote

Appeal—Case—Requests to find.

Where the party presenting requests to find succeeds before the referee so that no judgment or decree is entered against him upon the referee's report, but appeals from an order which refuses to enter a decree upon, such report, he is not entitled to insert in the case his requests to find where the same have been refused.

Appeal from order of the surrogate denying motion for leave to file certain requests to find and exceptions to refusals to find by the referee.

F. W. Hinricks, for app’lt; J. C. O'Conor, Jr., for resp’t

The appellant presented to the surrogate a ■petition asking that H. A. Y. Post, as administrator of Edwin Post, be required to account, and an order was entered by the ■surrogate directing said administrator to file his account. The said account, and exceptions thereto, were referred to a referee, .and the referee filed his report directing that the proceedings be ■dismissed, on the ground that the statute of limitations was a bar, and also on the ground that said administrator could not be compelled to account for the trust funds in the proceedings before him.

Numerous requests to find were submitted by the petitioner,

p. 690

which were passed upon hy the referee, many being refused, and some found; and the petitioner filed exceptions to the referee’s-report and also to the refusal of the referee to find as requested.

Upon a motion for the confirmation of such report, the surrogate refused to confirm the report, sustained the exceptions thereto,, and ordered that the matter and all papers and proceedings therein he referred back to the referee to proceed with the accounting, and from that order the administrator has appealed to this court

The papers upon which the surrogate made that order are recited in the order, and no mention is made of the requests to find submitted to the referee, or of the exceptions to the action of the referee upon such requests.

It is clear that the appeal from this order must be heard upon the papers upon which the order was made; and as these requests to find and exceptions' to the rulings of the referee upon such requests are not recited in the order as papers upon which the order was granted, they cannot be considered upon the appeal from the order by this court.

There appears to be no provision for filing requests to find upon which a referee has passed. On an appeal, however, from a judgment or decree entered upon the report of a referee, the party presenting such requests, where he is appellant,- has a right to review the action of the referee in refusing his requests to find, and for that purpose can insert in the case on appeal or hill of' exceptions his requests to find, and the ruling of the referee-thereon. But where the party presenting such requests succeeded before the referee so that no judgment or decree is entered against him upon the referee’s report, as in this case, but appeals from an order which refuses to enter a decree upon such-report, he is not entitled to insert in the case or the papers-upon which the appeal is heard his requests to find where the-same have been refused, as there is no appeal before the court presenting the questions raised by the rulings of the referee-against the successful party before him.

We think, therefore, that the order of the surrogate was right, and should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.