#### Leggett *v.*Mott. Haight *v.*Prince.(a)

The party deeming himself aggrieved by the report of referees, may appeal at once to the general term, from the judgment entered on the report, on the matters of ' law Involved.

Or, he may apply to a judge for an order staying proceedings on the report, with a view to move for a *rehearing.*The judge will grant a stay with or without terms, or will refuse it, as he may deem just.

Where a report of referees Is complained of as against evidence, the party has no redress except by a motion for a rehearing.

If a stay of proceedings be obtained, the party must proceed to settle his case, and bring it to a hearing at the special term.

The court at the special term, may in its discretion, consider and determine the errors of law alleged, as well as the weight of evidence; but where matters of law alone are involved, the party complaining of the report will, in general, be required to appeal at once to the general term.

From the order of the judge at the special term, granting or denying the motion for a rehearing on the referees’ report, an appeal may be brought to the genera] term, which will be heard with other calendar causes.

May 29, 1850

r The questions arising in the first case, appear in the opinion of the court.

*721
      *C. Nagle,*for the plaintiff.

*A. L. Brown,*for the defendant.

In note at the end of the principal ease. And see *Lusk*v. *Lusk,*4 Howard’s Pr. Rep. 418; *Graham*v. *Milliman,*ib. 435.

By the Court. Sandford, J.

In the case of *Haight*v. *Prince,*it was held by Campbell, J., after consulting Duer and Mason, Justices, that a report of a referee upon the whole issue, might be brought before the special term on a motion for a rehearing, when such order might be made, granting or denying the application, as to the judge should seem just. (2 Code Rep. 95.) The question being presented in this case in our branch of the court, we have conferred with our associates, (the six justices being present,) and it is the unanimous conclusion of the court, that the decision of Campbell, J., was correct. Whether the court will look into the matters of law, as well as of fact, arising upon the report of the referee, and direct a rehearing in respect of erroneous rulings of the law; will of course be in the discretion of the court, at the special term. Where the report is complained of as being contrary to the evidence, an examination of the legal points involved will generally be convenient and proper in connection with the argument on the evidence. Where however, the report is assailed in respect of its legal conclusions alone, the judge will be inclined to refuse a stay of proceedings with a view to a motion for a rehearing, and will leave the party to his remedy, by appeal from the judgment.

The considerations which lead us to this result, will be briefly stated. The amended code of 1849, allows of no appeal from *a judgment,*upon the facts involved. The appeal to the general term from a judgment, is limited to matters of law. (Am. Code, § 348.) This would cut off entirely, any review of the finding of a referee upon the facts, or of the verdict of a jury, or the decision of a judge upon the facts on a trial without a jury; unless there be some mode of reaching it, other than an appeal from the judgment. In *Droz*v. *Lakey,*
      *(a)*
      **we decided in January last, that a motion to set aside a verdict as against evidence, might be made at the special term, on a case settled in the usual *722manner; and that such motion might be made after judgment, the party obtaining a stay of proceedings for the purpose. We see no good reason, why the motion may not be made, without any formal case, before the judge who tried the suit, founded on his notes of the testimony, if he think proper so to direct. As to reports of referees, the code it appears to us, is explicit in making a provision independent of an appeal in the first instance. Section 272, after providing that the report may be reviewed in like manner as the decision of the court on a trial, enacts that a *re-hearing*may also be granted by the court. A rehearing, as we understand it, is obtained on a motion only; and this is brought on before a judge, either at chambers or at special term. If it be for a new trial on the merits, it must be moved before the judge, *in court,*i. e. at the special term. (Amended Code, § 400, 401, and 350.)

We are referred to the 24th rule of the supreme court, adopted in August last, as imperatively restricting the examination of the reports of referees, to an appeal to be heard at the general term. As this rule, in the broad application claimed for it, would conflict with the latter part of section 272 of the amended code, allowing a re-hearing, we think it was intended to apply, as in its literal terms it does apply, only to a *review*of the referees7 report, for which purpose a case must be made; and as the appeal is limited to the law of the case, it follows that rule 24 applies only to the review of the report of a referee, on matters of law. It is nevertheless a convenient practice to make a case on which to found a motion for a rehearing, in the manner prescribed by the rule of the supreme court, and that course will be required in our court in future.

The practice therefore in" respect of reports of referees, maybe thus stated. The party deeming himself aggrieved by such a report, may prepare his case, and appeal from the judgment on the matters of law involved. Or he may apply to a judge of the court, for an order to stay the proceedings on the referee’s report, for the purpose of moving for a rehearing. The judge will exercise a discretion, as to staying the proceedings, regulated by the nature of the action, the points proposed to be raised, and the danger of loss if collection of the demand be delayed j and he *723may impose terms on granting a stay. If the report be complained of as against evidence, there is no redress, except by the motion for a re-hearing. On obtaining a stay, the party must proceed to make and settle his case, and bring it on to be heard before the court at special term. An order will thereupon be made, either granting or denying the motion for a re-hearing. From this *order*either party may appeal to the general term, as provided in section 349 of the amended code. And such appeals xvill be heard, with other calendar causes, at the general term.

Rule accordingly.

Note.—The opinion of Campbell, J., in *Haight*v. *Prince,*referred to in this decision, was as follows:

Campbell, J. An order was granted staying the proceedings of the plaintiff for twenty days, to enable the defendant to prepare and serve a case. The cause was heard before a referee, who reported in favor of the plaintiff. The report has been filed, and a motion is now made to vacate the order staying the proceedings of the plaintiff, er to modify it so far as to allow the plaintiff to enter judgment, and also that an additional allowance be made to the plaintiff for costs. Section 272 of the code provides that the report of referees upon the whole issue, shall stand as the decision of the court, and judgment may be entered, and the decision of the referees may be excepted to and reviewed in like manner as if the action had been tried *by*the courtbut the same section also provides that a rehearing may be granted by the court in which the judgment is entered. Section 268 provides that where a judgment is entered upon the decision of the court after a trial by the court, (which trial must be before a single judge, § 255) either party desiring a review upon the evidence appearing on trial either of the questions of fact or of law may at anytime within ten days after notice of judgment make a case which shall be settled according to the existing practice. Section 278 provides that judgment upon an issue of law or of fact shall in the first instance be entered upon the direction of a single judge or report of referees, subject to review at the general term.

It would seem that where a review of a report of referees is sought, that review must be had before the general term, and to obtain it an appeal must be had, and security given, the same as in cases of appeal from the decisions of the court at special term. But section 272 gives an alternative relief, and provides that a rehearing may be granted by the court in which the judgment is entered.

This last section, as originally reported by the commissioners of the code, was without this latter provision. The clause authorizing the court in which judgment should be entered on the report of referees, to direct that the case be|re-heard, was one of the amendments made in the legislature. It may often occur that referees may err on points of law, and their errors may be corrected and the report sent back by a judge at special term, in a shorter time and at much less expense than if the case was reviewed at a general term. I think it must follow that the party who eels aggrieved by the report of the referees, has his election either to appeal to'the *724goneral term for a review, or to apply to the special term for an-order that the' cause be re-heard. It may be that in case such an application should be made, the party applying should point out the particular parts of the proceedings which- he considers erroneous, and that the re-hearing should be confined to those parts.

The facts in this cause are not before me, and I am not enabled to form any opinion as to the merits, and as-1 shall not at present vacate the order staying the plaintiff's proceedings, and as the cause may be ordered to be re-heard, it would not be-advisable at present to pass upon the question of extra allowance for costs.

The defendant must settle the case before the referee without delay, and must within ten days make his election to apply for a-re-hearing, or to appeal in order to obtain a review at the general terra.

Ante, page 681.