
    Morgan v. Taylor et al.
    
    
      (Common Pleas of New York City and County,
    
      General Term.
    
    June 3, 1889.)
    Reference—Sending Back Report for Further Evidence.
    After a trial before a referee has been closed, his report delivered and on file in this court, and the time for appellant to file exceptions thereto has expired, the special term has no power to send back the report, for the purpose of taking further testimony and making additional findings.
    Appeal from special term
    Defendant Catharine Taylor appeals from an order at special term denying her motion to send back the report of the referee in this action for the purpose of taking further testimony and making additional findings. For tile nature of the action, see the preceding case, ante, 920.
    Argued before Larremore, C. J., and Allen and Bookstaver, JJ.
    
      Wakeman <& Campbell, for appellant. B. C. Chetwood, for respondents.
   Bookstaver, J.

The trial before the referee had been closed; his report had been delivered, and was on file in this court when the motion was made; and the time for the appellant to file exceptions had expired. The application was in reality to reopen the trial, and put in further testimony as well on the questions theretofore tried as upon other matters. This would in effect be awarding a new trial by the special term, which it has no power to do, as has been repeatedly determined. Bamc v. Neuss, 2 Civ. Proc. R. 185; Gardiner v. Schwab, 34 Hun, 582; Armstrong v. McKelvey, 39 Hun, 218. The former practice, which allowed the referee to make additional findings of fact or conclusions of law on the settlement of the case, did not permit the practice contended for on this motion; and it was decided in Gormerly v. McGlynn, 84 N. Y. 284, that section 1023 of the Code was not intended to permit an application for findings, or compel a decision upon them after the final disposition of the case; thus abrogating the rule and the practice as it theretofore had existed in regard to additional findings on the settlement of the case. The motion was therefore properly denied, and the order should be affirmed, with costs. All concur.  