#### Edward P. Stewart, Trustee, etc., Resp’t, *v.*Russell C. Bates and ano., Ex’rs, etc., App’lts.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 22, 1889.)*

New tbial—When application denied.

Where, in the affidavits upon a motion for a new trial of an action, tried three times before several different referees, there are no allegations of prejudice, partiality or misbehaviour on the part of the referee, of the omission of any evidence, or of evidence since obtained, or of any fact, or state of facts, which renders it probable that the result of another trial would be different from the last, but the motion is based wholly upon the assumption that the merits of the controversy are with the moving party, the application should be denied.

Appeal from an order of special term denying defendant’s motion for a second new trial under the statute.

*F. L. Durand,*for app’lts; *E. Harris,*for resp’t.

Dwight, J.

The action was ejectment, and the defense was an alleged equitable title in the defendant’s testator. It has been four times tried—each time by a different referee. On the first trial, the evidence offered on the part of the defense, was excluded, and the judgment then entered was reversed for error in that ruling. On the second trial, before the late Hon. David Rumsey, the merits were fully heard, and a report was made in favor of the plaintiff. The defendant’s testator, then living, took a new trial as matter of right. The new trial was first had before the Hon. Linus W. Thayer, of Warsaw, who reported in favor of the defendants, but the judgment entered on his report was reversed for error in the admission of evidence. The fourth referee was the Hon. George T. Spencer, of Corning. He excluded the evidence, the admission of which, by Mr. Thayer, was held to be error, and reported in favor of the plaintiff.

The motion from the denial of which this appeal was taken, was addresed to the favor of the court. In the affidavits upon which it was founded, there was no allegation of prejudice, partiality or misbehavior, on the part of the referee; of the omission of any evidence on the last trial, or of evidence since obtained; nor of any fact or state of facts which renders it probable that the result of another trial would be different from that of the last. The motion was based wholly upon the assumption that the merits of the controversy are with the defendants, and that justice will be promoted by still another trial of the issues. But how to satisfy the court that such is the case? The action has been *832three times tried on the merits, by learned, capable and impartial referees; the questions mooted have been wholly questions of fact, and of the three trials two have resulted in favor of the plaintiff. The one instance in which the result was otherwise, was when evidence was admitted for the defendants, which this court held to be incompetent. Should, a fourth trial, on the merits, before another referee, result in a report for the defendants, the status presented would be that of two reports on one side, and two on the other-—a condition of things which would seem to call for a fifth trial,, more strongly than a fourth is called for at present.

We do not see that any good reason is shown why another trial should be had. The issues of fact, in this case, cannot be determined by an appellate court. The parties have chosen, for that purpose, the tribunal of a reference; they have had the two trials which the law awards, as of right, to parties contesting the title to land; and of both of these trials the result, when not vitiated by error, has been the same. “ It concerns the state that there should be an end of litigation.”

We think the order denying the motion for a second new trial must be affirmed.

All concur.