
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent and Appellant, v. THE BANK OF NORTH AMERICA, Respondent and Appellant.
    
      Motion to send bach a case to a ref m'ee for further findings — when denied.
    
    Upon a motion for an order to send back a case to a’ referee for further findings, it appeared that he had already passed upon such questions by refusing to find as requested, and that in each case the party requesting the finding had duly excepted to his refusal so to find.
    
      Reid, that the motion was properly denied, as upon such a motion the Special Term was not authorized to look into the whole case and determine that the referee ought to decide questions presented to him differently from what he had already done.
    Appeals of the above-mentioned parties, respectively, from orders made at Special Term held by Mr. Justice Beady, denying their respective motions to send back the case to the referee for further findings.
    
      
      Francis O. Barlow, for the plaintiff.
    
      Flihu Boot, for the defendant.
   Í)avis, P. J.:

In each of these motions, the affidavit on which the motion was founded showed distinctly that the referee had already passed upon each and every of the questions presented by the requests, by refusing to find the same as requested, and in each instance the party making the request had duly excepted to such refusal. The motions were, therefore, properly denied. The referee had not declined to pass at all upon the questions and therefore omitted to make any decision, but he had passed upon each of them and made a distinct decision which was the subject of an exception, and to which an exception was taken. Where that has been done we do not understand that the practice requires or permits the party tailing the exception to move at Special Term, on an affidavit stating that the referee “wrongly and erroneously” refused to make the finding requested, that the referee be instructed to pass upon the question again.

The Special Term is not authorized to look into the whole case, and determine that the referee ought to decide questions presented to him differently from what he has already done. The question whether his refusal is error is raised by the exception, and may be presented upon the appeal. It is only in cases where the referee has declined to find, or to refuse to find a material fact, that the Special Term, on motion, may direct him to pass upon such fact. The learned court below was correct, therefore, in denying both of the motions, and its order should be affirmed. The appeals from these orders are embodied in the case on the appeal from the judgment, but as Mr. Justice Brady cannot sit for the determination of such appeal, a distinct decision, in.which he takes no part, is necessary to be made by the other members of this court, and orders of affirmance should be entered accordingly.

Ingalls, J., concurred; Brady, J., taking no part.

Orders affirmed.  