
    Charles E. Teale, as Administrator, etc., of Axel Young, Deceased, Respondent, v. George C. Tilyou and Another, Appellants, Impleaded with Susan A. Van Bergen and Others, Defendants.
    Second Department
    June 12, 1908.
    Practice —referee — findings—misconduct.
    A referee appointed after final judgment to determine the amount of damages only need not state separately the facts found and the conclusions of law pursuant to section 1022 of the Code of Civil Procedure,
    A new referee will not'be appointed because of alleged misconduct and negli- ■ gence on the part of the acting referee where the acts complained of were done with the acquiescence of the moving party's counsel and are not open to criticism. ■"
    Appeal, by the defendants, George C. Tilyou and Frederick Ingersol (sued herbin as “John Doe”) from an order of the Supreme Court,' made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 12th day of March, 1908, vacating the report of a referee herein and appointing another' referee.
    'Stephen C. Baldwin [Henry E. Ileistad with him on the brief], for the appellants. .
    fWalter E. Warner [Robert JJ. Boy with him on the .brief], for the respondent.
   Rich, J.:

In 1904 the plaintiff commenced this action to restrain the defend- . ants from obstructing a walk running from the Bowery to the ocean at Coney Island.- Upon- the trial the plaintiff succeeded and judgment was entered ordering the removal of the obstructions and incumbrances, and perpetually enjoining the defendants from thereaftér obstructing or incumbering'it.' - Subsequently upon plaintiff’s motion an order was granted at Special Term appointing a referee to hear and determine the damages sustained by the plaintiff and fix the amount thereof, and providing' “ that upon the coming in of said referee’s report judgment be entered by the clerk of Kings county in favor of the plaintiff and against the defendants for the amount so reported by said referee, together with the plaintiff’s disburse-1 ments in connection with said reference.” The referee, found in favor of the plaintiff for nominal damages only, whereupon plaintiff served notice electing to 'end' the reference, and moved at Special Term' for the appointment of a. new referee-on the grounds, first, of certain alleged misconduct and negligence, and, second, because the report of the referee contained no findings of fact or conclusions of law. The learned justice presiding at Special Term, speaking upon the subject upon which the' first ground of plaintiff’s motion is based, says: “It seems to me to have-been unduly-exaggerated and affords no reason for just criticism of any one.” The acts complained of were done with the knowledge and acquiescence of the plaintiff’s counsel. We are unanimously of the opinion, that the conclusion of the Special Term upon this branch of the motion was correct. We ave unable, however, to agree that plaintiff had thé right to have-the facts found by the referee separately stated. This appeal is from the order granting plaintiff’s motion because of the failure of .the referee to separately state the facts found. The Code of Civil Procedure (§ 1022) provides that the report of the referee Upon the trial of the “ whole issues of fact ” must separately state the facts found and. the conclusions of law. The question presented, therefore, is, were the whole issues of fact in the action tried by the referee % The issues in- the action have been tried, and -the judgment entered thereon affirmed -on appeal long before the appointment of the referqe to determine the amount of plaintiff’s damages. The reference was only an incident to the proceedings and not the “ trial of the whole issues of fact.” There is no provision of law requiring a referee appointed to determine the amount of damages to separately state the facts found.

It follows that the order was improperly made and it must be reversed, with costs.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements. Settle order before Mr, Justice Rich.  