
    NIEBUHR v. SCHREYER.
    
      N. Y. Common Pleas, Special Term ;
    
    
      October, 1888.
    
      Reference; order and successive reports; interloautoi'y judgment.J Although a referee “ to hear and determine ” all the issues, has power on finding that plaintiff is entitled to an account to go on and take and state the account, and make a complete report on which final judgment may be entered,—yet if instead of so doing he reports after trying the main issue, that the plaintiff is entitled ' to an account, and directs interlocutory judgment accordingly, without stating the account, and an interlocutory judgment is thereupon entered directing him to take the account, he will thereafter proceed, not under the first order of reference, but as a referee on a reference “ other than for the trial of issues,” and the testimony must be signed, the report on the accounting filed therewith, and notice of filing served giving opportunity to the adverse party to file exceptions.
    
    Motion to vacate judgment.
    This was an action in which plaintiff claimed a partnership between herself and defendant, and ■ demanded an-accounting, etc. The defendant denied the co-partnership, and the action and all the issues were referred to a referee to hear and determine. He made a report finding that the plaintiff was entitled to an accounting as to certain parcels of real estate mentioned in the complaint, but not as to others, and that such accounting should be brought upon two day’s notice; and that the question of a certain counterclaim; set up in the answer, should be reserved to such accounting; and that either party was entitled to enter an interlocutory decree on the report; and ordering such" decree.
    
    
      An interlocutory decree was thereupon entered, adjudging the rights of the parties as found by the referee, and referring it to him to take and state the account between the parties. He went on with the accounting, and made a report finding a balance due defendant of $251.37, and ordered judgment for him, with costs accordingly. This, report was not filed, with testimony of witnesses, as required by rule 30, nor were eight days allowed for exceptions, but the defendant, on filing the-report, immediately entered an ordinary money judgment in his favor against plaintiff for the sum reported due, with costs.
    The plaintiff then moved to vacate the judgment entered by the defendant on the ground that it was not a proper final judgment in an equity action as to form, and had not been settled, signed or authorized by a judge of the court; and on the further ground that the report of the referee upon which the said judgment was entered was not a report upon which judgment could be entered under Rule 30.
    
      T. M. Tyng, for the plaintiff and the motion.
    
      Alex. Thain, for the defendant, opposed contended :
    I. In the case at bar, all the equities were determined .and disposed of by the interlocutory judgment, and was to the effect that while the plaintiff alleged in the complaint what might be considered an equitable cause of action, yet it was determined that it was not equitable, but legal; and the papers proceeded upon that theory to ascertain in whose favor the ultimate money judgment should be entered. This interlocutory decree was entered on motion of plaintiff. .
    II. The practice followed by the defendant was in accordance with the Code. The report of the referee stated the facts found and the conclusions of law; but if that were -not so, no point is made by plaintiff on that ground ; and it ■directed judgment to be entered thereupon, and named the party entitled to receive the costs (Code Civ. Pro. § 1022). This says nothing whatever that the referee shall direct the form of the judgment, but the judgment. The judgment dírectéd was for a certain sum of money, and that direction the clerk complied with, as lie would have complied with any similar direction from a judge of the court. By section 1228, the whole issue in an issue of fact tried by a referee, the report stands as a decision of the court, and -except where it is “ otherwise prescribed by law',” judgment upon such report may be entered by the clerk as directed therein ; that is to say, the judgment was entered by the olerk as directed therein—that is, for the defendant, for a certain sum of money (Ross v. Ross, 31 Hun, 142, 145). There is no exception, “ expressly prescribed by law,” to this practice, except the following section (1229), which provides that in actions for divorce or separation, judgment cannot be taken as of course, and makes the other •exception, otherwise “ expressly prescribed by law,” namely •a reference under section 1215, where a case has been sent to a referee only to make a computation or assessment. But •even in such case, by section 1215, if the court shall not, in the order of inference, direct that the report be returned for its further or future action, final judgment may be entered by the clerk in accordance with the report of the referee, without any further application (See Throop’s Note to section 1215, explaining section 246 of the old Code). Sections 1011 and 1012 of the Code of Civil Procedure are further in the line of the only expressed limitation of the powers of the clerk, showing what causes may be referred, and how the clerk may act independently of the court, •except in matrimonial actions or an action for the dissolution of a corporation, the appointment of a receiver, or distribution of its property, or in the case of an infant (See Throop’s Note to section 1012).
    III. Before the enactment of section 1229, even in matrimonial actions, judgment was entered by the clerk as a matter of course upon the report of the referee, until the rules, which were numbered 86 and 91 in 1858, were promulgated, and these have been embodied in the statute as-section 1229 of the Code (See Throop’s Note to this section; Currie v. Cowles, 7 Robt. 3). So held in an action for the foreclosure of a mortgage (Hancock v. Hancock, 22 N. Y. 568). So, also, held in an action for divorce (Bihin v. Bihin, 17 Abb. Pr. 19).
    IV. A misapprehension seems to have arisen in respect • to the reporting of the form of a decree to be entered. There is no provision of law in respect to this, except section 1231, which is to the effect that in an action triable by the-court, an interlocutory judgment rendered upon a default in appearing or pleading, or pursuant to the direction contained in a decision or report, may state the substance of the final judgment to which the party will be entitled ; it may also direct that the final judgment may be settled by a judge or referee and in such case only, final judgment shall not be entered until a settlement thereof, subscribed by the judge or referee, is filed. The case in bar is not such as is provided for in section 1231, there was not an interlocutory judgment rendered in this action upon a default in appearing or pleading ; nor is it one pursuant-to the direction contained in a decision or report; but it is the final judgment itself. But if it were not so, the section is permissive only that it may-direct that the-final judgment be settled by a judge or referee,, which might well be, in a case involving intricate equities and nice questions of the disposition of property, or several judgments for various amounts in favor of and against different parties.' But even in such ease, to warrant the settlement of the form of the final judgment, an interlocutory judgment should have directed that the final judgment be so-settled, which is not this case. It would seem absurd to-suggest the settlement of the form of a judgment, when there was nothing left in the case, bui to find out which owed the other, and the amount of the indebtedness. The-, attention of the counsel has been called to the case of Vagen against Birngruber (see note on p. 1 of this vol.). In that case, not only was the form of judgment not discussed at all, but the court distinctly states that the question was not raised at all, and the opinion in that respect having been expressed by the court without question -raised and evidently without discussion, is obiter merely. With the profoundest respect for the presiding justice of the General Term of the supreme court., it is submitted that rules of court are not so established, and a dicta so announced would hardly be binding upon practitioners in that court, and surely would have no binding effect upon' any other court. To allow such a practice to prevail, would not only be contrary to the statute, but. would leave the court or judge sitting at special term toperform the duties of an amanuensis to the referee deciding the case, as it is conceded the court would have no power to-alter the judgment pronounced by the referee and directed to be entered by him.
    Y. The only remaining question then would seem to be-whether the judgment should contain the caption “At a Special Term,” etc., and have it appear that the matter had. been disposed of by one of the judges of this court. This-we contend is a matter of form and not of substance. If any such entry had been made, it would have stated .a simple fiction. The case was not before a special term of this court, nor was it before any judge of it, but before a referee, whose powers under the order of reference were equal' to any judge sitting at special term, but the referee was-not such judge, and it is suggested that long ago, fictions-in practice were abolished. The practice is well known,, that while a decision may be pronounced by one judge who has failed to give direction for the entry of the order or judgment to the clerk, such direction by way of fiat, may be given by any other judge, but the order or judgment, as the case may be, indicates that the matter was heard and disposed of and was before the judge making the decision. If a caption should prove to be an essential part of a judgment, it should recite the fact as not “ At a Special Term,” etc., but, “ Upon a reference before ” a certain persoti as referee. This appears in substance in the judgment itself.
    VI. To repeat: The interlocutory report and decree disposed of what might seem to have been the equities between the parties and determined that the action was not equitable, but legal. The referee reported that the defendant was entitled to a judgment against the plaintiff and fixed the amount, and the clerk has properly complied with his directions in that respect. But, if an untrue caption is important or material, defendant should be allowed to amend in that respect, nuno pro time. Plaintiff has not been harmed, and would not be injured by permitting the change.
    
      
       See note on Trial and Judgment by Referee preceding this case,
    
    
      
       The report, after determining that the plaintiff was entitled to an accounting, as to certain property, proceeded as follows': And I order and direct that the same proceed before me, all testimony heretofore given herein pertinent thereto to apply to such aecounting and that such accounting may be brought on, on two day’s notice by either party.
      The second and third conclusions of law determined that the-plaintiff was not entitled to an accounting in respect to ce-tain other property. The report further proceeded:
      
        Fourth. That the question of the counterclaim set up in the answer herein, be reserved to such accounting and the final disposition of the action.
      
        Fifth. That either party to this action is entitled to enter an. interlocutory decree on this report, and the same is hereby ordered.
    
    
      
       The interlocutory judgment entered upon the report, after the usual recitals and adjudging the plaintiff’s right to an accounting as to certain property, was as follows:
      That the cause be retained by [Referee] as sole referee to take- and state such account; that all testimony heretofore given before him on the trial of this action, pertinent thereto, apply to such accounting; and that such accounting may be brought on before said referee by either party, on two day’s notice.
      That the question of the counterclaim set up in the answer, and also the question of costs and allowances in this action, be also retained by said referee to be determined by him in connection with such accounting, and at the time of taking the same.
      That on the coming in of the report of the referee herein provided for, either party may apply for and have final judgment in the action-in accordance with its provisions.
    
    
      
       Supreme Court Rule 30, of 1888, is as follows:
      On a hearing before referees, the plaintiff may submit to a non-suit- or dismissal of his complaint, or may be non-suited, or his complaint, be dismissed, in like manner as upon a trial, at any time before the-cause has been finally submitted to the referees for their decision. In which case the referees shall report according to the fact, and judgment may thereupon be perfected by the defendant.
      
        In references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses shall be signed by them, and the report of the referee shall be filed with the testimony, and a note of the day of the filing shall be entered by the clerk in the proper book, under the title of the cause or proceeding, and the said report shall become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and .served within eight days after service of notice of filing of the same. If exceptions are filed and served within such time, the same may be .brought to a hearing at any special term thereafter, on the notice of any party interested therein.
    
   Daly, J. [after stating the facts]

This judgment was clearly irregular. The report of the referee upon the accounting should have been filed, with the testimony of the witnesses, as required by rule 30. The plaintiff should have had her time to file exceptions, which should have been brought to a hearing at a special term, and a final decree made thereon.

It is claimed that the referee proceeded with the accounting under the original order of reference of the issues, and that his final report did not require final confirmation, but that judgment was to be entered thereon in accordance with such report (Code, § 1228) ; but this position cannot be maintained. After the entry of the interlocutory decree, which contained an order referring the accounting to the same referee, the subsequent proceedings were had under that order of reference and not under the original reference of the issues. Under the original reference of the issues the referee could have heard all the evidence upon the issues, and then proceeded to take the account, making a single report on the whole case, upon which a final decree might have been entered without application to the court. This was done in Palmer v. Palmer (13 How. Pr. 363), but the court there say that it would be better practice to make a separate report declaring the existence of the copartnership and the liability to account.

The referee in this case followed the regular practice in making his report upon- the issue of copartnership before taking the account. When the whole of the issues raised by the pleadings have been so referred, it has been recommended as the better course for the referee to hear and determine such issues in the first instance separately, and report thereon to the court. If these are determined in favor of the plaintiff, and his right to an accounting be thereby established, he may then move on the report for another order confirming the report, and referring the cause (usually to the same referee) to take and state the account between the paties (2 Van Santv. Eq. Pr. [3rd ed.] 194). The same authority on the practice in such cases lays down the course of procedure on the accounting so ordered, and in the making and filing of the report thereon; by which it appears that the proceedings in respect thereto are to be had under rule 30, and that after the hearing of the exceptions, if any, a final judgment is to be entered embracing in effect the findings upon the issues, as well as adjudging the amounts or balances found due upon the accounting (Id. 210). This practice should have been followed in this case, and, not having been, the judgment must be set aside.

The testimony of the witnesses must be filed with the report, and notice thereof given to the plaintiff, and the proceedings will then be had under rule 30.

Motion granted, with $10 costs.  