
    In the Matter of the Judicial Settlement of the Accounts of Edward Bayer as Administrator with the Will Annexed of Martin Bayer, Deceased.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 19, 1889.)
    
    Surrogates — Mat return report to referee for correction.
    A surrogate has power, on a proper case made, to send back to a referee his report to make corrections and to pass on questions of fact not noticed therein. Section 1023, Code Civ. Pro., does not apply to such a case.
    Appeal by Edward Bayer, the administrator, from a decree of the surrogate of Monroe county adjudging him indebted to the estate of the decedent in the sum of $1,665.24. The account as rendered by the administrator was contested by one of the legatees named in the will, and the issues were referred tó a referee to hear and determine and report thereon, pursuant to the provisions of § 2546 of the Code of Civil Procedure. On the coming in of the report and before the same was confirmed by the surrogate, the appellant made an application to have the same sent back to the referee to pass upon certain questions of fact, not ruled upon in his report. This motion was denied by the surrogate upon the sole ground that he had no authority to make the order and was prohibited from granting the application by the provisions of § 1023 of the Code of Civil Procedure, as no requests to find had been submitted to the referee prior to making his report. This order the appellant seeks to review on this appeal. The other facts which bear upon the question considered by the court are stated in the opinion.
    
      J. M. Dunning, for app’lt; George F. Yeoman, for resp’t.
   Barker, P. J.

Before the questions presented by- this appeal relative to the merits are considered, an error in procedure should be corrected so that the appellant may be able fully to present his case on the state of facts which he insists were fairly established by the evidence presented to the referee. The appellant had been, by the order of the surrogate, removed as administrator of the estate of the decedent, and ordered to render an account of the moneys which he had received and paid out in his representative capacity. We think the learned surrogate was mistaken in supposing that the provisions of § 1023 were applicable to this case, and that he had no power to remit to the referee his report for further findings on questions of fact. The findings of - fact as contained in the report are very general, and from them it is impossible to determine how the referee disposed of certain material questions, of fact, for which the appellant contended and which the evidence tended to support. After the order was made refusing to send back the report, the respondent moved for its confirmation, and the surrogate modified the report by crediting the appellant with an item of $100, and, as modified, confirmed the same. We are unable to find any statute denying the surrogate the power, when a proper case is made, for sending back to the referee the report to make corrections and to pass upon questions of fact not noticed in his report. It was the settled practice of this court prior to the adoption of § 1023, when the referee’s report failed to pass upon the material questions of facts involved in the issues, to require him to do so, upon application of either party. That section provides, that when the referee has rendered a decision he shall not thereafter make additional findings of fact or rulings on questions of law. Gormerly v. McGlynn, 84 N. Y., 284; Gardiner v. Schwab, 34 Hun, 582; Bank, v. Levy) 41 id., 461; 3 N. Y. State Rep., 298.

The provisions of this- section, prohibiting the court or referee from making further findings of fact or rulings on questions of law, after the decision or report has been made, is limited in its application to cases where the issues arise, in an action on the pleadings, and are not applicable to special proceedings.

When questions of fact arise in any stage of the action, except on the pleadings, which the court is required to determine, and a referee has been appointed to try and determine the same, the court, on the coming in of the report, has the undoubted right, in a proper case, to send the same back to the referee to pass upon material questions of fact not determined by the report, or to set aside the report and order a retrial before the court. Such references are ordered for the purpose of informing the court as to the facts of the case, in the matter pending before it, and, if the report is unsatisfactory for any reason, a further hearing may. be ordered. The class of cases in which a reference may be ordered by the court with or without the consent of the parties, for the purpose of aiding it in disposing of questions of facts, are enumerated in §§ 1015, 1215 of the Code. It is provided in § 1232 that in such cases, where the reference has been executed, either party may apply for an order directing a new hearing, upon proof by affidavit, that error was committed to his prejudice, upon the hearing or in the report, and, in a proper case, the application may be granted after judgment has been rendered. In such a case the judgment may be set aside, either then or after the new hearing, as justice may require. These rules are made applicable to all special proceedings in surrogate’s court, except for the probate or the revocation of the probate of a will. In §. 2546 it is provided that the surrogate may, in his discretion, appoint a referee to take and report to the surrogate the evidence upon the facts, or on specific questions of fact; to examine an account rendered, to hear and determine all questions arising upon the settlement of such an account, which the surrogate has power to determine; and to make a report thereon, subject, however, to confirmation by the surrogate. It is also provided in the same section that the referee has the same power as a referee appointed by the supreme court for the trial of an issue of fact in an action, and that the other provisions of the Code applicable to a reference by the supreme court apply to a reference made as prescribed in this section, so far as they can be applied in substance, without regard to the form of the proceedings. There are other provisions on this subject, indicating very clearly that the provisions of § 1023 do not apply to this case.

It is declared in § 2545 that when a trial takes place before a surrogate, and a case is made by an aggrieved party, for the purpose of reviewing the rulings and proceedings of the surrogate, either party may on the settlement of the case request a finding upon any question of fact, or a ruling upon any question of law, and an exception may be taken to each finding or ruling. When questions of fact are tried before a referee, he, on the settlement of the case, also has the power, and it becomes his duty to pass upon all requests made for additional findings, either of fact or of law. The referee is to all intents and purposes the surrogate, so far as respects the trial of the issues before him, and the mode and manner of settling a case prepared for the purpose of reviewing his findings. Matter of Niles, 14 N. Y. State Rep. 538.

There it was stated by the learned judge who prepared the opinion of the court that findings of fact are to be presented in the settlement of the case where the issues are tried before the surrogate according to § 2545 of the Code, and that that provision applies when the case is tried by a referee. ‘

As the appellant in his moving papers made a case for the exercise of the judgment of the surrogate, whether the report of the referee should be sent back for further finding, he was entitled to a decision of his motion on the merits and the surrogate erred in holding that he had no jurisdiction to entertain the application. If the referee had made the additional findings of fact which the appellant requested, and which the evidence tended to support, it is not at all clear that the surrogate would have confirmed his report. After perusing the evidence it cannot fairly be said that the denial of the appellant’s application for further findings did not affect the decree from which the appeal is taken, and the order is here to be reviewed, as provided in § 2571.

It is also stated as indicating the effect which the order denying the motion may have had upon the subsequent proceedings, that on the settlement of the case, the appellant presented requests in writing for further findings, which the referee refused to pass upon, for the reason that they were not presented to him before he made his report, and that it was then too late for him'to entertain the same. Upon the facts as found by the referee interesting legal questions are presented, which have not been examined with the attention which their importance demands, and there seems to be no other way to cure the error we have pointed out but to reverse the decree of the surrogate as well as the order denying the application to send the case back to the referee for further findings.

The decree and the orders are both reversed, with the costs of this appeal to abide the final award of costs.

Dwight and Macomber, JJ., concur.  