Young v. Cuddy , 30 N.Y. Sup. Ct. 249 ( 1880 )

Gilbert, J.:

References of disputed claims against executors, pursuant to 2 R. S., 88, 89, §§ 36, 37, are “ special proceedings.” (Code Civ. Pro., §§ 3333-4.) Tlie provisions of the Revised Statutes regulating sucb proceedings bave not been repealed by tbe Code of Civil Procedure. Tbe general practice prescribed by tbe latter statute, relative to trials before referees, applies to the jiroceedings in this case. Sucb is tbe express provision of section 37, cited. In addition, that section provides that tbe court may set aside tbe report of tbe referees, or may confirm it. In tbe case before us tbe report was confirmed and judgment was entered thereon. Then a case was made in accordance with tbe practice prescribed by tbe Code of Civil Procedure, and a, motion was made thereon to set aside tbe report and tbe proceedings subsequent thereto, and for a new trial. Tbe motion was granted. Tbe practice thus pursued seems to bave been necessary to preserve tbe legal rights of the parties. Por upon a motion to confirm the report of referees in a proceeding like that before tbe court, a review of -the report upon tbe evidence is not usual or proper. (Eaton v. Benton, 2 Hill, 578.) A judgment follows, of course, upon tbe confirmation of tbe report. Nor could a judgment contrary to tbe report be rendered. (Coe v. Coe, 37 Barb., 232.) An appeal from tbe judgment without a case would bave been ineffectual. Tbe first section of chapter 270 of tbe Laws of 1854 provided for appeals from any judgment, -order or final determination in special proceedings made at a Special Term. Under that statute it was held that a motion to set aside tbe referee’s report was necessary, before an appeal could be taken from tbe judgment. (Somerville v. Crook, 9 Hun, 666.) But that necessity, if it ever existed, ceased when section 1 of chapter 270 of tbe Laws of 1854 was repealed. (L. 1877, ch. 417, § 28.) To obtain a review of tbe report, therefore, a case containing' exceptions, made conformably to tbe Code of Civil Procedure, was necessary. (§§ 994, 997.) An appeal may now be taken from the judgment (Code Civ. Pro., § 1346), and tbe case, on being annexed to the judgment-roll, would be brought up by sucb appeal. Tbe practice indicated would bave been regular in tbe instance before us. Still, tbe power to set aside tbe report given by section 37 ■of tbe Revised Statutes cited, remains, and as an incident thereof, the power to vacate the judgment exists. While, as a general rule, those powers should not be exercised, but parties should be required to pursue the prescribed practice, yet, as justice was promoted by the order appealed ■ from, we think it should be affirmed without costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Order setting aside referee’s report and granting new trial affirmed, without costs.