#### DAVID S. BENNETT and HARRIET A. BENNETT, Plaintiffs, *v.*LAVINIA H. AUSTIN, Impleaded, etc., Defendant.

*Motion for a new trial, after interlocutory judgment*— Appeal *need, not he taken*— *(Me,*§ 268.

After the entry of an interlocutory judgment or decree, not authorizing a final judgment, but directing further proceedings before a referee or otherwise, a motion for a new trial, on a case and exceptions, may be made under section 268 of the Code, without taking any appeal from such judgment or decree. *Semble,*such motion cannot be made in case of a trial before a referee.*

Such motion does not stay proceedings under the interlocutory judgment or decree.

Motion to strike this case from the calendar, on the ground that the court had no jurisdiction to hear and determine the same.

This action was commenced to redeem certain lands conveyed by the plaintiffs to one Stephen G-. Austin, on the ground that the deed was a security for a loan.

Austin died, and his wife was made a party defendant to this action.

The action has been twice tried. The second trial was had before Judge Henderson, who found the facts as alleged in the complaint, *452and decided that *the*plaintiffs had a right *to*redeem the said premises and directed an accounting as to the rents and profits received by Austin during his life, and by his wife since his decease.

Without taking any appeal from this decision, and after the time had elapsed from taking an appeal therefrom, the defendant’s counsel gave notice of a motion for a new trial on a case and exceptions.

*Wm. S. Qreene,*for the plaintiffs.

---, for the defendant.

*

 Under section 1001 of the Oode of Remedial Justice (Laws of 1867), such motion may be made in case of a trial before a referee.

Smith, J.:

We do not assent to the position of the plaintiffs’ counsel that an appeal must be brought, in order to move for a new trial under the provision of section 268 of the Code, which was introduced into that section by the amendment of 1867. (Laws 1867, ch. 781, § 9.) Prior to the adoption of that amendment, there was no mode of reviewing the decision upon a trial by the court, except by appeal from a final judgment. On such appeal any intermediate order, involving the merits, and necessarily affecting the judgment, might be reviewed. (Code, § 329.) That state of the practice led to much delay and inconvenience in a considerable class of cases tried by the court, in which, after the decision of the preliminary issue, an accounting or some other further proceeding was necessary before final judgment could be rendered, and which subsequent proceeding could be had more conveniently before a referee than before the court. To remedy that inconvenience, the amendment of 1867 was adopted, providing a motion for a new trial on a case and exceptions, whereby the interlocutory decision of the court could be reviewed, before judgment. The motion is not an appeal, but it must be brought on, upon a case or exceptions made as provided “ in case of an appeal.”

It was suggested, on the argument of this motion, that an appeal is necessary to bring the case up for review. But the statute directs that the motion shall be made at General Term, and as it is to be made on a case, and as a final judgment is not to be rendered by the General Term, the record need not be brought up.

It was also urged that unless a party proposing to move for a new *453trial, under section 268 is required to bring an appeal, tbe party prevailing at the Special Term, will be subjected to delay till tbe decision of tbe motion for a new trial, without having security. Tbe motion for a new trial does not stay proceedings. Tbe prevailing party may proceed with tbe cause, notwithstanding tbe steps taken with a view to a motion for a new trial, unless be is stayed by an order of tbe court, or a judge thereof, on tbe granting of which order, such terms may be imposed as shall appear just, respecting security or otherwise.

Tbe case of *Miller*v. *Lansing,*decided by this court in June last, is distinguishable from this. There tbe trial was before a referee, and we refused to bear a motion for a new trial on a case and exceptions, for tbe reason that tbe provision of section 268, in question, does not apply to tbe ease of a trial by a referee. Tbe inconvenience above adverted to, attending'the taking of an account, or other further proceeding, in an action tried by tbe court,, does not exist in the case of a trial by a referee, who can as conveniently take tbe account as be can try tbe main or preliminary issue. Tbe only mode now, as well as before tbe amendment of 186Y, of reviewing tbe decision of a referee, is by appeal from tbe final judgment.

Motion denied, but without costs, as tbe question of practice is new.

Mullin, P. J., and Talcott, J., concurred.

Motion to strike cause from tbe calendar denied.