
    GEORGE W. EIGHMIE, Respondent, v. MARY S. STRONG and Others, Executors, etc., of JOHN C. STRONG, Deceased, Appellants.
    
      Reference of a claim against a decedents estate — motion for a new trial, on a case ancl exceptions, after the confirmation of the refereds report.
    
    Where a reference of a disputed claim against a decedent’s estate has been had, and the report of the referee has been confirmed on motion and judgment has been entered thereon for the claimant, a motion for a new trial may be made at Special Term, on behalf of the decedent’s estate .upon a case and exceptions, and from an order denying such motion an appeal lies.
    
      Semble, that it is the more general practice to make such motion for a new trial at the time that the motion is made to confirm the report of the referee.
    Appeal from an order of tbe Erie Special Term, denying a motion for new trial, made on a case and exceptions.
    
      James O. Strong, for tbe appellants.
    
      M. M. SoutJvworth, for tbe respondent.
   Haight, J.:

Tbis was a reference under tbe statute to determine a disputed claim presented against tbe estate of Jobn C. Strong, deceased. Tbe referee found in favor of tbe plaintiff, and thereupon a motion was made at tbe Niagara Special Term for confirmation of tbe referee’s repoi’t and for judgment, wbicb motion was granted. Thereafter tbe defendant caused a case containing exceptions to be made and settled, and then moved, at tbe Erie Special Term, upon such case and exceptions, for a new trial, wbicb was denied, and from that order tbis appeal was taken. It is now claimed that a motion for new trial could not be made upon a case and exceptions after tbe referee’s report bad been confirmed; and tbe cases of Denise v. Denise (41 Hun, 9), and Hatch v. Stewart (42 Hun, 164), are rebed upon to sustain such claim. Nothing, however, of tbe kind was held in those cases.

In tbe case of Denise v. Denise, tbe question was whether tbe Special Term bad power to review tbe report of a referee upon an alleged error in a finding of fact or ruling upon tbe law, under section 1002 of tbe Code of Civil Procedure; and we held that a disputed claim presented against tbe estate of a deceased person under the statute, was a special proceeding (Roe v. Boyle, 81 N. Y., 305), and that motions for new trial, provided for by section 1002 of tbe Code, bad reference to motions in actions, and that tbe section bad no application to special proceedings; that appeals could not be taken from tbe judgment under section 1346 of the Code, but must be taken under sections 1356 and 1357 of tbe Code; and tbe case of Young v. Cuddy (23 Hun, 249) was only criticised in so far as it held that an appeal in special proceedings of this character could be taken from tbe judgment under section 1346 of tbe Code. Tbe case of Hatch v. Stewart was to tbe same effect, and nothing in either case bolds that a motion for new trial cannot be made upon a case containing exceptions in a special proceeding of this character.

Tbe statute provides that “If tbe executor or administrator doubt tbe justice of any claim so presented, be may enter into an agreement in writing with tbe claimant to refer the matter in controversy to three disinterested persons or to a disinterested person to be approved by tbe surrogate; and, upon filing such agreement and approval of tbe surrogate in tbe office of tbe clerk of tbe Supreme Court in tbe county in which tbe parties, or either of them reside, a rule shall be entered by such clerk, either in vacation or term, referring tbe matter in controversy to the person or persons so selected. Tbe referees shall thereupon proceed to bear and determine tbe matter and make their report thereon to tbe court in which tbe rule for their appointment shall have been entered. * * * And tbe court may set aside tbe report of the referees or appoint others in their places and may confirm such report and adjudge costs as in actions against executors ; and tbe judgment of tbe court thereupon shall be valid and effectual in all respects as if tbe same bad been rendered in a suit commenced by tbe ordinary process.” (3 R. S. [7th ed.], 2299, 2300, §§ 36, 37.)

It will be observed that the statute gives to tbe court the power to set aside tbe report of tbe referees and to appoint others in their places, as well as tbe power to confirm tbe report and order judgment accordingly. "Whilst tbe power is given by tbe statute tbe practice is not prescribed. That has been left for tbe determination of the courts. It is the customary and usual practice for the prevailing party to move at Special Term for a confirmation of the report. The motion being based upon the report, the only questions brought up for review are the regularity of the proceedings and whether the conclusions of law are sustained by the findings of fact appearing in the report. The rulings made upon the hearing in the admission and rejection of evidence and questions as to whether the evidence sustains and justifies the findings of fact, can only be brought up upon a case containing exceptions. It is the usual and customary practice for the defeated party to move upon a case containing exceptions for a new trial at the same time that the motion is made for a confirmation of the referee’s report, so as to have all of the questions determined in the one motion, and this is doubtless the better practice. But we think the motion for new trial upon a case and exceptions may be made after the referee’s report has been confirmed. Such has been the approved practice of our court and we see no reason why it should be changed. (Somerville v. Crook, 9 Hun, 664; Young v. Cuddy, 23 id., 249; Schreyer v. Holborrow, 26 id., 468.) "We are thus brought to the consideration of the case upon the merits. * * * (Here follows a discussion of the facts of the case.)

The order should, therefore, be reversed, and the motion to set aside the referee’s report and for a new trial before another referee 1 granted, costs to abide the final award of costs.

Barker, P. J., Bradley and Dwight, JJ., concurred.

Order reversed and motion to set aside referee’s report, and for a new trial before another referee granted, costs to abide the final award of costs.  