Manwaring v. Lippincott , 69 N.Y.S. 461 ( 1901 )

Gixdebsleeve, J.

This is a motion to confirm the report of a referee. A number of exceptions have been filed, and voluminous briefs and papers submitted in opposition to the motion. The ref erence, however, was not one in aid of the conscience of the court, nor one to determine the distribution of surplus money upon the foreclosure of a mortgage, in which cases the court at Special Term could consider the merits of the case, and confirm, or set aside, or refer back the report, as the court might deem proper. Mutual Life Ins. Co. v. Salem, 3 Hun, 117; Same v. Anthony, 23 W’kly Dig. 421. But in the case at bar the reference was to hear and determine the issues presented by the pleadings. The action is one of partition, and the report of the referee fixes the respective shares of the property to be partitioned to which each' of the parties is entitled, and directs a sale of the premises. In such a case the Special Term is without discretionary power to go into the merits upon a motion to confirm. In the case of Paget v. Melcher, 26 App. Div. 12, which was very similar to the one at bar, Mr. Justice Rumsey uses the following language, viz.: “ The application for judgment upon the report, which is made to the court i at Special Term, is not for the purpose of a review of the correctness of the findings of the referee, but simply to furnish an assurance of regularity in the manner of entering the judgment and to enable all parties to know that the judgment as entered conforms to the one directed in the report. There was, therefore, no authority in the Special Term to modify the conclusions of law found by the referee so as to enter a different judgment than that directed in the report.” The motion to confirm the report in the case at bar must be granted. The only question left to the court for determination is that of costs and allowances; and this can best be determined upon the settlement of the order, which will be on notice to all parties interested.

Ordered accordingly.