
    Charles Devlin against The Mayor, Aldermen and Commonalty of the City of New York.
    (Decided June 26th, 1876.)
    Where the trial of the issues in an action is by order of the court sent to a referee, on the ground that, the examination of a long account is involved, and the judgment entered on the report of the referee is on appeal reversed and a new trial ordered, the new trial does not as of course take place before the referee before whom the former trial was, but either party is entitled to have the cause placed on the general calendar for trial without prejudice to a motion for a new order of reference.
    
      Quwre, as to whether the rule would be the same in a non-referable case where the parties consented to a trial of the issues before a referee.
    Appeal by defendant from an order of this court-made at special term by Judge Yah Bkhnt, denying a motion made by the defendant to place the cause on the general calendar of the court.
    The facts are fully stated in the opinion.
    
      Wm. G. Whitney, for appellant.
    
      J. J. Mavrin and T. G. Gronin, for respondent.
   Robinson, J.

This cause, being an action upon contract, was, by order of Hay 29, 1865, referred to a referee. From this order of reference defendants appealed to the general term, where it was affirmed July 18th, 1866. The referee made a report in favor of the plaintiff, on which judgment was entered in his favor, which, on appeal to the general term, was reversed, and judgment absolute rendered for the defendants. Plaintiff then appealed from that judgment to the Court of Appeals, which court, in October, 1875, reversed the judgment of the general term, but affirmed so much of it as reversed the judgment entered on the report of the referee, and ordered a new trial. No special order was made by that court with respect to the subsequent mode of trial. Defendants made a motion that the cause should be restored to the trial calendar (basing their motion on the ground that the question of fraud involved should be tried by a jury), which was refused, and this appeal is from that order. If, by reason of the complete reversal of the judgment entered upon the report of the referee, the orders made for the trial of the cause by a referee or other interlocutory orders were vacated, and the cause restored to its condition when issue was joined, the motion to restore the cause to the trial calendar should have been granted without prejudice to plaintiff’s right to renew the motion for a new order of reference founded upon the considerations previously presented as to the cause being one that should be referred.

The general and unqualified reversal of a judgment reverses all that has been done judicially in the cause, and adjudges every order, interlocutory judgment, or other thing partaking of the character of judicial action upon the ease presented by the pleadings, and on any subsequent action thereon, as absolutely void and of no effect. This included all adverse orders to which exception had been taken that were subjects of review on the appeal. When, on such reversal, a new trial was ordered, without specification or reservation as to the mode of trial, it restored the parties to their former condition when the issues tried were joined, or their mode of trial had been agreed upon between the parties, and as the case was presented for trial on the pleadings, whether that trial, as then required, might, in accordance with the provision of the Code, be had before a judge and jury, or before a judge without a jury, without special order to the contrary.

The compulsory order of reference in this case granted against the opposition of defendants constituted a part of the adverse judicial determinations that had been made in the action against the defendants after issue joined and the cause was in readiness for trial, and fell with the judgment in the general reversal. It constituted part of the judgment roll (Code, § 281), and the appellate court had the question as to the validity of the compulsory order of reference before them, within the scope of its powers of review (Townsend v. Hendricks, 40 How. Pr. 143). Their general reversal overturned every adverse ordfer affecting the merits, to which proper exception or an appeal had been taken, unless saved in the order of reversal.

It is difficult to conjecture upon what ground the idea has become prevalent that on the reversal of a judgment entered upon the decision and report of a referee, the issues were, as of course, remitted back to him for re-trial. Ho analogy is found in any other kind of trial before a jury, or a single judge without a jury, and the proposition that, after reversal of a judgment thereupon entered, the cause was remitted for trial before the same judge or jury would be preposterous.

A referee to whom issues are sent for trial is but a judicial officer pro hac vice, and when he has once tried the cause and signed and delivered his report, his judicial functions have been exhausted. He then becomes functus officio, and has only a remaining ministerial duty, subject to direct control by the court, to settle a case and findings on questions of fact.

This has been the uniform decision of our courts (Pratt v. Stiles, 17 How. Pr. R. 211; Ayrault v. Sackett, lb. 507; Coope v. Bowles, 42 Barb. 87; Shearmam, v. Justice, 22 How. Pr. R. 241; Niles v. Price, 23 lb. 473 ; Leffler v. Field, 33 lb. 385 ; Trufant v. Merrill, 37 lb. 531). His decision stands with equal force as that of a judge who tries a cause without a jury, and is to be appealed from in like manner (Dana v. Howe, 13 N. Y. 306), but that after his power has been “ exhausted,’* there should yet exist in him, by virtue of the original order of reference, some latent judicial function to be revived through a reversal of the judgment and general order for a new trial, would seem a legal enigma difficult to comprehend.

The learned counsel for the plaintiff, however, asserts that it is “the universal opinion of the profession, and is the practice sustained by authority,” that on such general reversal the former referee is reinvested with jurisdiction to try the cause, subject only to a motion for the substitution of another referee for good cause shown. The reported cases to which he refers: Shuart v. Taylor (7 How. Pr. 251); Schermerhorn v. Van Alen (13 Ib. 82); Billings v. Vanderbrek (15 Ib. 295); and Bissell v. Hamlin (13 Abb. Pr. 22), are but special term decisions, and fail to authoritatively establish such a doctrine.

In Shuart v. Taylor (supra) the report of the referee was merely set aside, not on appeal from a judgment entered on his. decision, but on motion to the special term for some cause not stated.

In Schermerhorn v. Van Alen (supra) this point does not appear to have been presented, but the continuance of the order of reference notwithstanding the reversal of the judgment, appears to have been acquiesced in, although the judge held that the substitution of a new referee instead of the one who had decided in favor of one of the parties was proper.

So in Billings v. Vanderbrek the point was not taken, but the substitution of another referee was merely claimed, and it is to be observed that the original reference was made by consent of the parties in a cause not referable.

In Bissell v. Hamlin, on reversal of the judgment, the order of reference was directed to be vacated, and this would seem to have been done only out of abundance of caution.

In White v. Smith (1 Lans. 469) the general term of the Sixth District, on reversal of a judgment founded on the report of a referee, directed that the order of reference should stand; and this was probably within the power conferred by section 330 of the Oode, to reverse, affirm or modify the judgment,” “and, if necessary or proper, to order a new trial,” in such mode as is proper to be prescribed.

No such direction having been given' by the appellate court in the order of reversal and granting a new trial, this cause stood for trial on the pleadings, without any subsisting order of reference, and defendants were entitled to their motion.

This decision is, however, not intended to affect any order made on references by consent. That may he considered when the question is presented. a

Order appealed from reversed with costs, and cause ordered "to be placed on the general calendar for trial, without prejudice to any motion to be made by plaintiff for an order of reference.

Chables P. Daly, Ch. J., and Joseph F. Daly, J., concurred.

Ordered accordingly.  