Union Bank v. Mott

13 Abb. Pr. 247

Opinion

By the Court.

*— Ingraham, J.

—Without expressing any opinion as to the amount of the allowance, we think the appeal in this case cannot be sustained.

There can be no doubt that the case is one contemplated by ■ the Code as a suitable one in which to make an allowance. The judge at special term had the discretion vested in him to settle the rate of allowance, being only confined to the maximum limit of five per cent. ‘

The mode in which he has exercised that discretion is not to be reviewed by the general term, even if the allowance should be thought to be too large.

The Legislature must give the general term power to review such questions before we can entertain the appeal.

' Appeal dismissed.

II.—Appeal from an order for a further, report.

The plaintiff moved, at special term, for leave to apply to the referee, who tried the cause, for a further report on certain issues. Leave was granted by an order which did not specify the particular points upon which a report was required. From this order the defendant appealed.

Dudley Field, for the appellant.

S. A. Foot, for the respondent.

By the Court.—Ingraham, J.—The order for a further report from the referee left it open with the referee to report any . further facts or findings necessary, if consistent with the evidence—if erroneous, they will be corrected on review. The order does not specify any particular mode of report, and leaves that to the referee. The order might have specified the points upon which such report was to be made, but the information can be obtained from the affidavits.

Order affirmed with costs.

Present, Ingraham, Clerke, and Leonard, JJ.