
    Eliza Ennis, Resp’t v. Lawrence Ennis, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 13, 1887)
    
    Referee—Duty of under order to receive evidence.
    Where the order appointing the referee to take proof of facts provides that either party shall he precluded from giving such evidence as may he competent as to any claims on account of any mortgages, and specifies a particular one, the referee will err in excluding competent evidence as to the particular one referred to in the order.
    This is an appeal by the defendant from judgment rendered at special term on the 6th of May, 1886, in favor of the plaintiff, and notice is given by the appellant in his notice of appeal that he intends to bring up for review upon such appeal the interlocutory judgment herein entered January 21, 1885. By that interlocutory judgment it was determined that a certain conveyance made by the plaintiff to one Deacon of her undivided half interest in certain premises situated in the city of New York, dated September 30, 1816, which said premises were subsequently conveyed by said Deacon to the defendant, was declared to be fraudulent, null and void, and that the same be set aside as against the plaintiff. It was further adjudged that the defendant reconvey to the plaintiff the premises mentioned .in the conveyance aforesaid, and, further, that it be referred to a referee to take and state the account of the defendant of the rent and income of the premises above mentioned received by him since the 30th of September, 1816, and for any taxes or other liens or incumbrances upon said premises since that date, made or suffered thereupon by him, or by him paid or discharged, and that said referee ascertain and report the amount of taxes or other liens and incumbrances which are outstanding or existing upon or against said premises, and that said referee ascertain and report the amount of the rent and income of said premises, and that he be at liberty to report any special facts that may be proper to enable this court to make its final judgment.
    It was further adjudged that the defendant pay to the plaintiff such part of the rents and income of the said premises so found to have been received by the defendant as the court shall in its final judgment direct, and that the defendant pay and discharge at or before the date of the delivery of the conveyance by him to the plaintiff in said decree mentioned, all taxes, hens and other incumbrances upon the estate and premises received by him from the plaintiff except such as were existing hens thereon when said conveyances were made. There were other provisions in the decree to which it is not necessary to refer in dispos ing of this appeal. After the entry of the interlocutory decree the plaintiff moved at the general term of this court upon exceptions for a new trial herein, and on the 7th of May, 1885, the general term made an order denying the motion, but amending the decree to the effect that the findings of the learned justice before whom the case was tried upon the trial thereof, shall not preclude either party from giving such evidence as may be competent under the pleadings as to any claims on account of any mortgages and the interest thereon less time paid, or due now or heretofore existing upon the premises described in the complaint together with interest paid by the defendant therein, and for taxes, water-rates and permanent improvements. Upon the case coming before the referee, a bond and mortgage of the plaintiff for $5,000 to Thomas Cummins were offered in •evidence. Objection was taken to their competency and the objection sustained. The defendant then applied to the general term, which amended the order theretofore made by providing that the decree aforesaid: “Shall not preclude, either party from giving such evidence as may be competent under the pleadings as to any claims on account of any mortgages and including the mortgage dated April 10, 1874, from the plaintiff to Thomas Cummins, and the interest thereon,” etc. Upon the further hearing before the referee the bond and mortgagage by the plaintiff to Thomas Cummins having been offered in evidence, this question was nut to the defendant: “Has that bond ever been paid?” This was objected to on the ground that it already appeared in evidence that the mortgage had been satisfied, and that it also appeared by the findings and by the answer that the only consideration for the bond and mortgage was the plaintiffs’ promise to pay the defendant $5,000 for dower right, provided by law, and that the question was incompetent generally under the pleadings. This objection was sustained. Several other questions were asked of the defendant in regard to that bond and mortgage which objections were all sustained upon the same ground as the first objection. The case now comes up on the appeal heretofore referred to in which the appellant insists he is entitled not only to review upon such appeal the final judgment, but also the interlocutory judgment.
    
      L. B. Bunnell and Bobert Johnston, for app’lt; Michael Furst and A. W. Gleason, for respt.
   Lawrence, J.

We are of ©pinion that under the second order made by the general term of this court it was the duty of the learned referee to have received any evidence which might be offered by the defendant in regard to the mortgage executed by the plaintiff to Thomas Cummins and the interest thereon, and that the' referee' therefore erred in sustaining the objections to the testimony offered by the defendant at folios 320-323 of the case

We regret that this case is not in such a position as to be disposed of upon its merits, but are compelled to send the case back to the referee for further proofs Ordered accordingly.

Van Brunt, P. J., and Bartlett, J., concur  