COURT OF APPEALS.

#### Samuel L. Hunt, respondent, agt. George M. Chapman, appellant.

*Practice in reviewing orders by this cowrt.*

An order of the supreme court at special term, refusing the application to “ send the case, on appeal, back to the referee before whom the action was tried, to pass upon certain additional findings of fact, proposed and requested by the defendant,” which does not appear to have been before, nor considered by the court at general term, is not before this court for review.

The récord must show an actual determination of the court, at general term, to entitle a party to be heard in this court, in review of an order or judgment of that court.

The two appeals in this case, the one from the judgment and the other from the order, were distinct, having no necessary connection with each other; either might be decided without respect to the other.

The order "of the special term was not an intermediate order, involving the merits, or necessarily affecting the judgment, and could not, therefore, be reviewed upon an appeal directly from the judgment, under section 329 of the Code.

Had the court at general term affirmed the order, it could have been reviewed here upon appeal from the "judgment, under section 329.

The history of the proceedings in the case shows that the order was not reviewable at the general term as an intermediate order, and that it did not affect the judgment appealed from.

"Where there are no exceptions to the facts found by the referee, or to the refusal to find the proposed facts, and-there is no foundation laid for the allegation of- error in the judgment, the judgment upon the merits must be affirmed, as this court cannot review the evidence with a view to reverse the judgment upon questions of fact.

The costs in an action to foreclose a mortgage are governed by section 308 of the Code, except where the case is difficult or extraordinary, and a defense has been interposed or a trial had, and, in such cases, by-section *378309, the court may make an allowance not exceeding two and a half per cent.

*June Term,*1875.

Appeals by defendant from an order and a judgment in this action.

*N. C. Moak,*for appellant.

*Jesse C. Smith,*for respondent.

Allen, *J*.

The order of the supreme court refusing the application to “ send the case on appeal back to the referee before whom this action was tried, to pass upon certain additional findings of fact, proposed and requested by the defendant,” is not before us for review. It was made at special term, and does not appear to have been before, or considered by, the court at general term, and this court cannot entertain appeals directly from the determination of the court at special term. The record must show an actual determination of the court, at general term, to entitle a party to be heard here in review of an order or judgment of the court *(Code, see. 11; Lake*agt. *Gibson,*2 *Comst.,*188).

The two appeals, the one from the judgment and the other from the order, were distinct, having no necessary connection with each other; either might be decided without respect to the other.

The court may, upon an appeal from a judgment, review any intermediate order involving the merits and necessarily affecting the judgment *(Code, sec.*329). The order of the special term was not an order of that class. It was not intermediate, did not involve the merits or necessarily affect the judgment. It could only be reviewed upon an appeal directly from it. The orders which can be reviewed under section 329, are those made in the progress of the action, and before the judgment from which the appeal is taken, and by *379which that judgment was necessarily affected. Courts will not, from reasons of convenience, hear appeals from orders of this description, before the hearing of the whole case upon the merits; but this rule of practice does not authorize the inference that the two appeals are necessarily connected, or that the order was reviewable by the general term as an intermediate order. The practice is suggested, and the reasons for it assigned, by judge Rapallo, in *Van Slyke*agt. *Hyatt*(46 *N. Y.,*259) and *Quincy*agt. *Young*(53 *id.,*504). The order of the general term affirming that at special term, denying a motion to compel a referee to make further special findings, is an intermediate order which may necessarily affect the judgment from which an appeal is brought to this court, and so reviewable on an appeal from the judgment of the general term. Judge Rapallo, in *Quincy*agt. *Young,*is careful to confine the assertion that the order is reviewable, on an appeal from the judgment, as an intermediate order, to the order of the general term, affirming the denial of the motion at special term. Had the court at general term affirmed the order, it could, within the case cited, and within the spirit and reason of section 329 of the Code, have been reviewed here upon an appeal from the judgment.

A brief history of the procedure in the action will clearly show that the order was not reviewable at the general term as an intermediate order, and that it did not affect the judgment appealed from. The issues in the action were referred for trial to Mr. Murray Hoffman. He reported upon those issues in favor of the plaintiff on the 10th of June, 1874, and on the twenty-fourth of the same month the cause was brought to a hearing at special term upon that report, and the proof of the default of certain of the defendants and such other proofs as were necessary, and final judgment given for the plaintiff upon the whole record. On the third of July the present appellant took his appeal to the general term from that judgment. In December thereafter he moved for the order for further findings of fact by the referee, and the motion *380was denied on the sixteenth of the saíne month and an appeal was taken to the general term from that order seven days thereafter by a notice addressed to the attorney for the plaintiff. On the 12th of February, 1875, the judgment was affirmed. It does not appear that the appeal from the order was moved or heard at general term. It certainly has .not been affirmed so far as the record discloses. If the action of the referee in respect to the additional findings proposed by the defendant be referred to, it will be found somewhat difficult to ascertain precisely what he has found and what he has refused to find, and whether his refusals are for the reason that the proposed facts were not proved which would be equivalent to a finding adverse to the request of the defendant, or because the proposed facts were foreign to the issues, or, still further, whether his refusals were based upon *his views of the practice, that facts admitted upon the record or proved by documentary evidence' should not be embodied in the report or found by the referee. The cas.e before the referee and upon which he acted, and to which he refers by the folios at which particular facts are proved or admitted, or certain documents appear, is so entirely different from the record before us, as folioed, that the references cannot be traced, at least without great labor, such as could be better performed in an attorney’s office than by this court. But the referee is not responsible for the form in which the conclusion of- his labors appears'upon the record. His memorandum was designed merely to enable the attorneys to put his conclusions in proper form to be certified by him. It was all that was required for that purpose, but as a report or certificate making part of the final record of a court, it does that distinguished jurist and correct practitioner injustice. The purpose of the informal memorandum and that it was intended merely as suggesting to counsel the proper papers to be prepared for his signature and final certificate, he declares very plainly. It is not improbable that the special term may have denied the application upon the ground that the paper was *381not in the form intended by the referee, and did not, with clearness and precision, show what he had found or what he had refused to find, or his reasons for refusing to find as requested, so that the court could determine whether the proper protection of the rights of the defendant required that the case be sent back for further findings. The motion might well have been denied for that reason, leaving the defendant to renew his application when- he should have obtained the final decision of the referee in an intelligible form. But it is enough that the order has not been passed upon by the general term and is not before us upon this appeal. This order not being reviewable leaves but little to be said of the case. There is but a single exception and that is to the general conclusion of law, that upon the facts found the plaintiff is entitled to recover; that the legal conclusion was sustained by the findings of fact by which it was preceded was not disputed. The referee finds the making of the mortgage, the title of the plaintiff thereto and the amount due thereon. A judgment of foreclosure was the necessary sequence. He also finds against the counter-claim for moneys received by the plaintiff to the use of the appellant, and that none of the allegations of fraud or false or fraudulent representations in the answer were proved. The additional facts found by the referee do not affect the right of the plaintiff to the judgment. There are no exceptions to the facts found, or to the refusal to find the proposed facts, and there is no foundation laid for the allegation of error in the judgment. The learned and indefatigable counsel for the appellant based his argument entirely upon the evidence at large in the case and not upon the facts found by the referee, and it was pertinent to show the materiality of the proposed facts. We cannot review the evidence with a view to reverse the judgment upon questions of fact, and, as we have seen, we cannot examine it in respect to the order refusing to send the case back for further findings. It follows, that upon the merits the judgment must be affirmed.' But the court erred in *382granting an extra allowance of five per cent in addition to the costs allowed by law, and from this the defendant appealed. The allowance was made'under section 309 of the Code, which authorizes an allowance of five per cent in difficult and extraordinary cases when a defense has been interposed, or in such cases where a trial has been had. But this was .an action to foreclose a mortgage and is governed by section 308, except where the case is difficult or extraordinary and a defense has been interposed or a trial' had; and in such cases, by section 309, the court may make an allowance not exceeding two and a half per cent.

The judgment should be modified by deducting one-half of the extra allowance, and, as thus modified, affirmed.

All concur ; Gboveb, J., absent.