Nones v. Hope Mutual Life Insurance , 5 How. Pr. 157 ( 1850 )

Edmonds, Justice.

By section 272 of the Code, the report of a referee upon the whole issue shall stand as the decision of the court, and judgment, be entered thereon in the same manner as if the action had been tried by the court. By our 24th rule, on filing a report of a referee tipon the whole issue, judgment may be entered as a matter of course.

Thereupon the same rule prescribes the manner in which such a report may be reviewed, that is by making a case in the manner prescribed in the 15th rule, which case can be heard only on appeal at a general term. It must be a matter almost of course, under this rule, to allow the case to be incorporated into the judgment record so that it can be carried up for review.

There is, however, another mode of reviewing the decision of a referee when on the whole matter in issue, and that is by a rehearing by the court in which the judgment is entered (Code, § 272).

The defendant, may, therefore, have the benefit of his motion to have the case incorporated into the record, or he may have a rehearing. A special motion at special term is, under the 30th rule, the proper mode of obtaining a rehearing, though the rehearing, if granted on a question of law, ought to be at a general term.

In this case, I do not grant the rehearing, because I see no good reason why the defendant should not be put to its appeal and to giving security thereon as required by the Code, but I grant the motion to incorporate the case into the record.