
    Benjamin L. M. Bates, Plaintiff, v. Frederick Holbrook et al., Defendants.
    (Supreme Court, New York Special Term,
    June, 1903.)
    Practice — Review of an assessment of damages made under a remittitur of the Court of Appeals.
    The report of a referee, appointed under an order entered upon the remittitur of the Court of Appeals to assess damages to which that court had by its final judgment held the plaintiff entitled, cannot be reviewed by the defendants upon a case and exceptions but only in compliance with Rule 30 of the General Rules of Practice.
    Motion by the defendants to allow them to make a case and exceptions and to a stay of proceedings.
    James A. Dunn (Frank E. Smith, of counsel), for motion.
    John Delahunty, opposed.
   Giegerich, J.

The Court of Appeals decided that the plaintiff was entitled to final judgment and that the damages should be assessed. An order was entered in this court on the remittitur appointing a referee to assess the damages. The latter made his report assessing plaintiff’s damages, and before the time to except thereto expired the defendants moved for leave to make and serve a case and exceptions and for a stay until the making and settlement of such case, and the making and decision of such motion to set aside said report. I think the defendants have mistaken their remedy. As seen, the issues have already been decided by the Court of Appeals, and the reference was not to hear and determine the issues in the case,, but “ to take proof of the plaintiff’s damages and report to this court in regard thereto with all convenient speed.” In Bossout v. R., W. & O. R. R. Co., 131 N. Y. 37, the damages were assessed by a jury and the defendant sought to have its determination reversed by the Court of Appeals. In dismissing the appeal the latter court said (p. 41) : “ There is no provision for making a case and exceptions or for a motion for a new trial on-the judge’s minutes.” Since no case is to be made, the practice here is governed by Rule 30 of the General Rules of Practice, which provides as follows: “ In references other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses shall be signed by them, and the report of the referee shall be filed with the testimony, and a note of the day of the filing shall be entered by the clerk in the proper book, under the title of the cause or proceeding, and the said report shall become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing of the same. If exceptions are filed and served within such time, the same may be brought to a hearing at any Special Term thereafter, on the notice of any party interested .therein.” Therefore, if the defendants are dissatisfied with the report of the referee they must, within the time above specified, after the service on them of a notice of the filing of the report, file exceptions thereto, and upon the filing and service of such exceptions the plaintiff may bring them to a hearing at any Special Term on notice and move that the exceptions be overruled and the report confirmed. If such motion is granted, then the defendants may appeal from the order of confirmation, and only in that event may the appeal be brought on upon a case made and served, but not otherwise. Yaw v. Whitmore, 66 App. Div. 317; Lewin v. Lehigh Valley R. R. Co., id. 410. The practice adopted in the two last cited cases, however, has no application until such appeal from the order confirming the report is taken. In both these cases the damages were assessed by a jury. Neither do I think that Rule 31 of the General Rules of Practice nor the other cases cited by the defendants apply. The motion is, therefore, denied, but in view of the apparent novelty of the questions presented, costs should not be imposed. The defendants should have an opportunity to file and serve exceptions to the referee’s report, ,and the order to be entered hereon should contain a provision therefor.

Motion denied; no costs.  