
    SUPREME COURT.
    Simmons agt. Johnson Adm’r.
    Under the present Code, the decisions of a referee upon the whole issue, can not be reviewed nor a rehearing granted hy a special term.
    
      The decision in the case of Church agt. Rhodes, antepago 281, approved.
    
    
      Fulton Special Term, May 1852.
    This was a motion to set aside the report of a referee in favor of the plaintiff, “ as being against the weight of evidence, and also for a rehearing.”
    M. Fraser, for Defendant .
    
    M. & J. McMartin, for Plaintiff.
    
   Hand, Justice.

The preliminary objection, that under the present Code the defendant has mistaken his remedy, is conclusive. The Code of 1849 authorized the court to grant a rehearing (§ 272). In the revision of 1851, and also of 1852, this clause was omitted (Church agt. Rhodes, 6 How. Pr. R. 281). The decision of a referee must now be reviewed “ in like manner and not otherwise, as on a trial by the court” (Codes of 1851 and 1852, §272). I find no authority in the Code to overrule the decisions of a single judge on a trial by the court, either by a review or rehearing, at a special term (§268). An appeal “ upon the facts,” now lies to the general term from a judgment, entered upon a report of referees, or by the direction of a single judge (Code of 1852, § 348; and see Graham agt. Milliman, 4 How. Pr. R. 435). Where the report is upon the whole issue, no doubt judgment may be entered up thereon of course (§ 272, 278).

I thought this could not be done under the Code of 1848, for then judgment could not be entered except upon the direction of a single judge, in but two cases (Code of 1848, § 233). It was upon this section and some adjudged cases, that I decided Deming vs. Post (1 Code R. 120). The Code of 1849 expressly authorized the entry of judgment upon a report of referees {Code of 1849, §278). It was upon that change of the statute, Van Valkenburgh vs. Allendorf (4 How. 39) was decided, and not upon any change of opinion.

The third and fourth Codes have retained this provision, and the same result follows {Codes of 1851 and 1852, §278). That section also makes the judgment subject to a review at a general term, where, as we have seen, questions of fact may also now be examined {Code, §348, 268). If the facts only are reported and the report, consequently, only amounts to a special verdict, judgment must still be given at a special term (§ 265, 268). It is not necessary here to decide, whether an equity case may not arise, where an application to a special term may still be proper; though it would seem Church agt. Rhodes (supra) was an equity case (see Giles vs. Lyon, 4 Comst. 599; Burhans vs. Van Zandt, 7 Barb. 91; Grilling agt. Slate, 5 How. Pr. R. 205). For this is a case at law, and all the issues were referred.

There have been a variety and contrariety of opinions upon this question of reviewing the report of' referees (Raynor vs. Clark, 7 Barb. 581; Wilson vs. Allen, 6 id. 542; Pepper agt. Goulding, 4 How. 310; Leggett agt. Mott, id. 325; S. C. 2 Sandf. R. 720; Lusk agt. Lusk, 4 How. 418; Enos agt. Thomas, 5 id. 361; LaWall agt. Grigg, id. 158; Nones agt. Hope Mutual Ins. Co. id. 157; Renouil vs. Harris, 2 Sandf. 641; and see Ball agt. Syracuse and Utica R. R. Co. 6 How. Pr. R. 198, and the cases before cited). But I think Mr. Justice Gamley m Church agt. Rhodes lays down the correct' practice, particularly in cases at law 5 and as there seems to be an ample remedy by an appeal, I am inclined to follow that decision in this case. The motion there was made after judgment, but I think that does not alter the case.

Motion denied with costs.  