
    Margaret A. Swift, App’lt, v. Charles H. Swift et al., Resp’ts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1895.)
    
    1. Reference — Scope of order.
    Under an order of reference in an action for the admeasurement of dower, which provides that the referee should determine whether plaintiff's damages, “if any, were taken into consideration by the commissioners heretofore appointed herein * * * and whether such commissioners made plaintiff due and full compensation for such damages in their award, the referee is authorized to receive evidence as to the action and finding of the commissioners, though the latter made no formal report on the question of plaintiff’s damages.
    3. Judgment — Entry—Motion costs in favor of unsuccessful party.
    Where, in an action for the admeasurement of dower, the plaintiff’s claim for damages is denied upon a reference with costs thereof to defendant, the proper procedure is to deduct, upon the entry of final judgment, such motion costs as the defendant is entitled to from the amount of plaintiff’s claim, and to insert in the judgment a clause denying plaintiff’s claim for damages.
    3. Same.
    Where such deduction was not made in the judgment, the omission may be remedied by an order setting off such costs against plaintiff’s costs in the final judgment.
    Appeal from an order, confirming the referee’s report in favor of defendants on the question of damages, and offsetting defendant’s costs on such reference as taxed, against plaintiff’s judgment as entered.
    
      S. A. Hungerford (Lewis Cass, of counsel), for app’lt; Ward & Cameron (Walter S. Ward, of counsel), for resp’ts.
   Putnam, J.

—The practice adopted- in this action is not to be commended. It is brought to recover dower in real estate occupied by defendant Charles H. Swift, and damages for withholding the same. The defendants appeared in the action, but served no answer. After the usual reference, commissioners were appointed, who made a report admeasuring plaintiff’s dower, dated July 80, 1892. The commissioners did not report on the question of damages. . After such report was made, and before the entry of judgment, plaintiff applied for an order of reference to a referee to compute her damages. The order asked for wras granted on the 26th day of November, 1892. It appeared that defendants bad paid plaintiff for the use of her part of the premises up to April 1, 1892; so that the only damage, if any, she was entitled to, was for the withholding her dower from that date until July 80,1892, the date of the report of the commissioners.

It is claimed by plaintiff that defendants not having answered or set up any counterclaim, the referee, to compute damages for the withholding of plaintiff’s dower, erred in receiving evidence tending to show a counterclaim offered by defendants, and in acting upon such evidence. But it will be observed that the order of reference which plaintiff obtained provided that the referee was authorized to determine whether plaintiff’s damages, “if any, were taken into consideration by the commissioners heretofore appointed herein for admeasurement of plaintiff’s dower in said premises, and whether such commissioners made plaintiff due and full compensation for such damages in their award.” And the referee reported as follows:

“ That said commissioners took into consideration the farm as it stood when the division was made, as to the crops being on the land or off, and made plaintiff due, full, complete, and adequate compensation for any or all inequalities which existed in the land set apart to her by reason of hay or pasture being removed therefrom, and any and all damages which she sustained by reason of the dower being withheld from her in said farm by the defendant Charles H. Swift from April 1, 1892, to the time such division was made.”

We are of opinion that the evidence sustained this finding of the referee, and that, under the order of reference which was obtained and entered by the plaintiff, the referee was authorized to receive evidence as to the action and finding of the commissioners, although the latter made no formal report on the question of plaintiff’s damages. We think, therefore, that the conclusion reached by the referee against plaintiff’s claim for damages for withholding her dower for the three months in question was right, and should be sustained. The commissioners had considered her claim, and compensated her, and the order of reference which plaintiff obtained allowed the referee to consider the action of the commissioners.

On the report of the referee disallowing plaintiff’s claim, defendants entered a separate judgments for costs, as if a separate action were pending for' damages. The judgment was afterwards set aside by the court. Afterwards the plaintiff entered a final judgirient in favor of herself for the admeasurement of her dower, with, costs. This judgment contained no provisions in reference to plaintiff’s claim for damages. The defendants then made a motion that the report of the referee denying plaintiff’s claim for damages be confirmed, and that the costs of such motion, which were taxed at $159.53, be set off against plaintiff’s costs in the final judgment. The motion was granted, and the order was made, from which this appeal is taken.

The proper procedure would have been, when the final judgment was entered, to have deducted such motion costs as defendants were entitled to from the amount of plaintiff’s claim, and also to have inserted in the judgment a clause denying plaintiff’s claim for damages. But the judgment containing no provisions in regard to the claim of plaintiff for damage or for the costs of the defendants on the motion, we see no legal objection to the remedying of the omission by the order in question. I't may be regarded as an amendment of the judgment.

We think, however, there was an error in the amount of costs allowed. No answer was served. There was no issue. Hence defendants were only entitled to motion costs, $10; referee’s fees, $80; witnesses’ fees, $3.10; and postage, 24 cents, — in all, $93.34.

The order should be modified accordingly, and, as modified, affirmed, without costs to either party.

Fursman, J., concurs; Herrick, J., not acting.  