Kennedy v. McKone

Barrett, J.:

The question presented by the motion- which resulted in the order appealed from was decided by the referee. He found all the facts necessary for the decision of the question, and upon those facts he awarded costs in accordance with his conclusions of law. The court at Special Term could not overrule the referee with regard to these any more than with regard to any other of his conclusions. His decision upon all questions presented to him could only be reversed by an appeal from the judgment entered upon his report. The report of a referee appointed to hear and determine the issues has the same force and effect in all respects as the decision of a justice of the court after a trial at Special Term. It follows that the motion should not have been entertained. The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements of the appeal, and the motion dismissed, with ten dollars costs.

Van Brunt, P. J., Rumsey, O’Brien and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion dismissed, with ten dollars costs.