Morgan v. Taylor

5 N.Y.S. 922, 15 Daly 302, 23 N.Y. St. Rep. 960, 1889 N.Y. Misc. LEXIS 2684

Opinion

Bookstaver, J.

The trial before the referee had been closed; his report had been delivered, and was on file in this court when the motion was made; and the time for the appellant to file exceptions had expired. The application was in reality to reopen the trial, and put in further testimony as well on the questions theretofore tried as upon other matters. This would in effect be awarding a new trial by the special term, which it has no power to do, as has been repeatedly determined. Bamc v. Neuss, 2 Civ. Proc. R. 185; Gardiner v. Schwab, 34 Hun, 582; Armstrong v. McKelvey, 39 Hun, 218. The former practice, which allowed the referee to make additional findings of fact or conclusions of law on the settlement of the case, did not permit the practice contended for on this motion; and it was decided in Gormerly v. McGlynn, 84 N. Y. 284, that section 1023 of the Code was not intended to permit an application for findings, or compel a decision upon them after the final disposition of the case; thus abrogating the rule and the practice as it theretofore had existed in regard to additional findings on the settlement of the case. The motion was therefore properly denied, and the order should be affirmed, with costs. All concur.