#### McCREADY v. FARMERS’ LOAN & TRUST CO. et al.

(Supreme Court, General Term, First Department.

June 15, 1894.)

Reference—Sending back Report for Additional Testimony.

After a referee appointed to hear and determine has .made his report, he is without further power, except to settle a case on appeal, and the-report cannot be sent back to him for the purpose of taking further testimony.

Appeal from special term, New York county.

Action by Caroline Amanda McCready against the Farmers’' Loan & Trust Company and another. From an order sending back to the referee his report, for the purpose of taking testimony with: regard to commissions alleged to be due William Whaley, as administrator, plaintiff and defendant the Farmers’ Loan & Trust" Company appeal.

Reversed.

For former report, see 24 N. Y. Supp. 57.

Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ.

David McClure and Charles Steele, for appellants.

Charles A. Jackson, for respondent.

PARKER, J.

After the referee had made his report in the suit which was referred to hear and determine, leaving him without further power, except to settle the case on appeal, the court, at special"' term, “ordered that the report of William H. Willis, Esq., the referee herein, which was filed herein on the 5th day of April, 1894, be, and it is hereby, sent back to said referee, for the purpose of taking testimony in regard to the commissions alleged to be due to William Whaley, as administrator of Louisine W. Whaley, deceased, and receiving evidence on behalf of said administrator, as-well as of the other parties hereto, in regard to said matter, and to allow the said administrator to cross-examine the said Nathaniel L. McCready in regard to his testimony on said matter, and to-make such legal objections thereto as he may see fit.” Our attention is not called to any statutory provision authorizing such practice. Under section 1228 of the Code, a referee’s report, in an action where the whole issue is one of fact, stands as the decision of the-court; and, in other than a few exceptional cases, judgment is entered thereon by the clerk. After his report has been filed, he cannot proceed further in the taking of testimony looking to, or which might result in, a change of decision. That power has passed-from him, and the special term cannot restore it, let alone compel its exercise. If the record of the trial shows error, as against the defeated party, his remedy is by appeal; otherwise, the judgment must stand, unless there exists such facts outside the record" as entitle him to a new trial. The grounds upon which the granting of a new trial may be predicated need not be adverted to, nor-need we consider whether the affidavits before the special term: would have supported an order granting a new trial, for no such, order was made or asked for. Therefore, we have not that ques*362tian before us. The court did not grant a new trial, and appoint the same person or another to act as referee, specifying in the order, as required by rule 31 of the general rules of practice, the grounds upon ■ which the motion was granted. Instead, it treated the report of the referee as something which could be recalled and corrected in accordance with evidence, to be presented, which should conflict with that upon which it was based,—the referee as having the power to take other testimony) and render a different judgment, if put in motion by the special term, and the court as having the authority to. specify the subjects as to which further evidence should be taken, and, necessarily, the respects in which a different decision would be permissible. Boss v. Ross, 31 Hun, 140, and the cases cited in the opinion of Brown, J., support the position taken. The order should be reversed, with costs and printing disbursements, and the motion denied, with $10 costs. All concur.