(78 Hun. 553.)

#### BLOOM et al. v. NATIONAL UNITED BEN., SAV. & LOAN CO. et al.

(Supreme Court, General Term, Fifth Department.

June 20, 1894.)

Reference—Exceptions to Report—Filing Nunc Pro Tunc.

A motion for leave to file exceptions nunc pro tune to the report of the referee will be denied where it appears that the moving party was represented on the hearing of the motion to confirm the report, and opposed the confirmation, though he had filed no exceptions thereto.

Appeal from special term, Monroe county.

Action by Hyman Bloom and others against the National United Benefit, Savings & Loan Company. From an order denying a motion for leave to file exceptions nunc pro tune to the report of a referee after confirmation of such report, and for entry of final judgment thereon, defendants appeal.

Affirmed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

J. H. Hopkins, for appellants.

J. B. M. Stevens, for respondents.

DWIGHT, P. J.

There seem to have been several good reasons for denying the defendants’ motion in this case. The action was in behalf of the plaintiffs named, and all others of the shareholders of the defendant company who might elect to come in as parties, to recover of the other defendants—certain directors of the company—for loss of assets through the negligence and misfeasance of such defendants. The principal issues joined in the action had been tried, and determined in favor of the plaintiffs; and an interlocutory judgment had been entered, which directed, among other things, that an account be stated of debts and liabilities of the company, for which the shareholders were or might he personally liable. A reference was accordingly had, to take and state such account. The referee made Ms report, which was duly filed, and notice of the filing was given to the defendants. A motion was duly noticed and made for the confirmation of the report, and for final judgment. The defendants were represented on the hearing *537of the motion, and opposed the confirmation of the report, although they had filed no exceptions thereto; and they made, at that time, no request for leave to file exceptions, nor for time—before the confirmation of the report—in which to apply for such leave. The report was accordingly confirmed, and final judgment was directed and entered thereon; and it was only after the entry of such final judgment that notice was given of a motion on behalf of the defendants for leave to file exceptions nunc pro tune, on the ground of inadvertence. The motion was clearly too late. The attorney and the counsel for the defendants must have discovered on the hearing of the motion to confirm, if they did not know it before, that they had no exceptions filed to the report of the referee; and then was the time, if they desired to have exceptions, to ask for leave to file them then and there, or for a postponement of the confirmation of the report pending their application for such leave. By this means, if the leave should be granted, the exceptions would be before the court on the motion to confirm, and for judgment. To interject exceptions into the record, nunc pro tune, would be to make a case on appeal which was not the case upon which the order and judgment appealed from were máde and entered.

There is another ground upon which we think the court might properly have denied the motion. The motion was for a favor,—to excuse loches. The moving papers should have shown merits in the application, viz. that there was some reasonable ground for the exceptions which leave was asked to file. So far as appears by the moving affidavit, there was no ground whatever for any exception, and the motion was a purely dilatory proceeding. The order appealed from should be affirmed. All concur.

So ordered, with $10 costs, and disbursements of this appeal.