Offinger v. De Wolf , 11 Jones & S. 144 ( 1878 )

By the Court.—Vah Vorst, J.

—This is an appeal from an order denying a motion to vacate a judgment for an alleged irregularity. The action, which is in partition, came on to be tried before the Hon. John J. Freedman, at a special term of this court, November 4, 1875, without a jury.

The learned judge determined the issues, and made his decision thereon in writing, finding certain facts and conclusions of law.

But he directed a reference to a referee named by him to take proof of the interests of the parties, and to report whether the premises were so situated as that an actual partition could not be made. He also directed the referee to ascertain the liens upon the premises, and to take an account of rents, &o. The question of costs, as well as other questions, were reserved until the coming in of the referee’s report.

After such finding of facts, which disposed of all the issues, no other findings of fact were necessary to enable the defendant to obtain a review of the judgment finally entered in the action.

The further proceedings in court in the action, would be founded upon the referee’s report upon the matters referred to him.

The findings of facts and conclusion of law, the result of the trial of November, 1875, could have been excepted to, as well as the referee’s report. These latter exceptions could be disposed of by the court, as it appears they were, when application was made for a confirmation of the referee’s report. And the appeal from the judgment and order of confirmation would bring up for review all the exceptions.

The matter contained in the supplemental answer, which was allowed to be filed, presented no new issue, requiring additional findings of fact by the judge. The matter involved in the supplemental answer, which affected the accounts of one of the parties, was also referred to the same referee, and was passed upon by him, and was the subject of adjudication, when the report was before the court for confirmation.

We fail to discover any irregularity in entering up the judgment without findings and conclusions other than those made by Judge Freedman. If exceptions have been taken to such findings and conclusions, and to the order or judgment of confirmation of the referee’s report, the defendant can raise all legal objections upon the appeal from the judgment.

The question of costs was determined by the judge, by the order made when the report was before him on the final hearing. That question was then properly before him upon the findings and conclusions of Judge Freedman and the referee’s report.

The order appealed from should be affirmed with costs.

Curtis, Ch. J., and Sanford, J., concurred.