Welch v. Preston

Headnote

Appeal — settlement of case — right of the referee to malee additional findings upon the request of the parties — waiver of irregularity.

Appeal from a judgment dismissing the complaint herein, entered on the report of a referee.

This action was brought to compel the specific performance of a contract to convey certain real estate described in the complaint.

The court at General Term, after passing upon the merits of the

appeal, said: “ It is suggested by tbe respondents’ counsel that tbe additional findings of the referee, made at the time of settling the case, cannot 'be considered on this appeal, as the present Code, which had taken effect previously, does not authorize findings to be made at that stage of an action. It is true there is no statutory authority for such findings, since the adoption of the Code of Civil Procedure, but it is competent for the parties to an appeal to agree upon a statement of facts on which the appeal shall be heard, and the same will be considered by the appellate court, if it 'appears to have been settled and signed by the referee or trial judge, in accordance with the rule. In this case each party appears to have requested the referee to make additional findings at the time of settling the case, and findings so made at the request of the appellant and respondents respectively, are contained in the appeal book. Even if the appellant alone had procured such findings to be made and inserted in the appeal book,.it would have been a mere irregularity, which the respondents might have been deemed to have waived by omitting to object at the time and to move to strike them from the appeal book, and bringing the case on for argument in its present shape.”