
    ISAAC N. DEVOE, Respondent, v. DAVID R. NUTTER, Appellant.
    
      Referee's report—motion to set aside.
    
    Two actions were pending between the same parties, one in the Court of Common Pleas, and the other, the present action, in this court, both of which were referred to the same referee. An order was made by the referee that the issues in the action in the Common Pleas should be tried first, and that if they were decided against the defendant, that then an accounting should be had to determine the amount due.
    The actions were tried before the referee who, subsequently filed his report, and directed that judgment be entered for the plaintiff in the action in this court. The defendant applied to have the report set aside, claiming that he had been misled, that he understood the order to apply to both actions, and that he had therefore failed to introduce proof as he had intended to do at the proper time, to reduce the amount of plaintiff’s demand. The motion was denied. Upon appeal to the General Term, held, that its denial was error. That as it appeared that defendant had been misled, that an order should be entered vacating the report so far as it related to the amount of the recovery, and directing the referee to proceed to try and determine the question as to the amount plaintiff is entitled to recover.
    Appeal from an order made at the Special Term, denying a motion made by the defendant, to set aside the report of a referee.
    
      Mudgett & Nutter, for the appellant.
    
      W. L. Flagg, for the respondent.
   Opinion by Davis, P. J.

Beady and Daniels, JJ., concurred.

Order reversed.  