
    CATLIN a. COLE.
    
      Supreme Court, Second District;
    
      Special Term, March, 1860.
    Case.'—Resettlement.
    After a cause has been heard and determined by the general term, and a statement of the facts found ordered to be annexed to the roll, and an appeal has been taken to the Court of Appeals, a resettlement of the case, and a restatement and refinding of the facts found by the referee, is not to be allowed.
    
    
      
      It seems, however, that a specific error or omission in the case might be corrected / in a proper case.
    Motion to refer back the cause for a resettlement of the case and exceptions.
    In this case, on an appeal to the general term, after a trial by a referee, the court ordered that the facts found by the general term be annexed to the judgment-roll. On appeal from the general term to the Court of Appeals, the appellants moved in the latter court that they have leave to apply to the Supreme Court for a resettlement of the case. The order made on this motion recited that it was the opinion of this court that if the case needs any resettlement, it should be done by and before the referee who tried the cause; and no opposition to the motion being made on the part of the respondent, it was ordered that the motion be granted—expressing, however, no opinion upon the question, whether the case, as already settled, does or does not conform to law and the practice of the court.
    The appellant now moved at special term to refer back the action to the referee, before whom the same was tried, to amend and settle or resettle the case and exceptions, and to separate therefrom the exceptions stated therein, in such manner, and so as duly to present to the Court of Appeals the questions of law which ought to be examined by such court on the appeal taken by the defendants to the Court of Appeals, and to amend and resettle the findings of facts and conclusions of law of the referee, so as to fitly present the questions to be examined.
    
      N. Dane Ellingwood and H. Whittaker, for the motion.
    
      Mr. Street, opposed.
    
      
       The Court of Appeals hold that their review must be upon the same case on which the cause was heard at general term, except where by the leave of the court below, or on consent, a case containing only the questions of law is substituted ; and that though the court below has power to reform the case used in that court, so that it shall present to the Court of Appeals questions of law alone, they have no power to change it by inserting facts otherwise than as found by the referee, or exceptions not taken. (Johnson a. Whitlock, 13 H. 7. (3 Kern.) R., 344.)
      "Where the case is not properly settled, that court will, in a proper cause, give the appellant leave to apply below to amend the record. (Westcott a. Thompson, 16 N. 7. (2 Smith) R., 613.)
      In Smith a. Grant (17 How. Pr. R., 381), after a trial by the court, and appeal by defendant, on a case and exceptions, to the general term, judgment was affirmed, on the appeal, on the ground that certain facts were established by the evidence, though not stated in the finding. The defendant appealed to the Court of Appeals ; and in that court the cause was ordered to stand over, with leave to the appellant to apply to the court below for a resettlement of the facts found, on the ground that they were not sufficiently stated, and the application was accordingly made, and made at a general term.
      
        Held, on such application, 1. That the court at general term could not resettle the facts found below.
      2. That they could not send the cause below for a resettlement, because, having pronounced judgment on the appeal, any alteration in the facts found would make it a different case.
      
        3. That they would permit a statement of the findings of the court at general term to be settled, and attached to the record, on terms.
      See also Mills a. Thursby (No. 9), 11 How. Pr. 3., 134 ; (No. 11), 13 lb., 417; where such amendments were made under peculiar circumstances.
      In Fish a. Wood (2 Ante, 419), the court refused to allow a resettlement of the case, on the ground that the application came too late, after the decision of the appeal.
    
   Brown, J.

—The order made by the Court of Appeals on the 6th of January, 1860, which appears to have been granted in the absence of the respondent, does not direct that the case in this action be resettled. If it needs to be resettled, it directs it shall be done by the referee who tried the action, but expresses no opinion upon the question whether the case, as already settled by the referee, does or does not conform to the law and practice of the courts.

If rule 38 of this court, to which I am referred, applies to a case heard at the general term, and decided upon the facts and the law found by the referee, and spread out at length upon the papers, it can require no more than that the general term or the judge who delivers the opinion shall say, I determine, by the order of the court, that the general term do find the same facts as were found by the referee before whom the cause was tried, and that such facts be annexed to the judgment-roll, as the facts found by the general term. This has already been done by the order of the special term of the 19th of October, 1859.

The general term of the Supreme Court is a court of appeal, and nothing else, with power to review the judgments and decisions made by referees, as well as by the special term. The Court of Appeals entertains appeals from the judgments of the general term, upon the same state of facts as were presented to the general term, and no other. Cases will doubtless occur when some word, or exception to a decision, or to some separate proposition in a charge of the judge is accidentally omitted in the bill of exceptions, and not discovered until the action has been removed to the Court of Appeals. In all such cases it is quite right that the specific error should be corrected and the omission supplied. But I do not recognize the regularity of a practice which would authorize an entire resettlement of the case, and a restatement and refinding of the facts found by the referee, after which the cause has been heard and determined by the general term. This is the relief demanded by the defendants on this motion; and if it should be granted, the case in the Court of Appeals would not, perhaps, be at all like that which was heard at the general term.

The facts have been carefully and fully found by the referee. They occupy some twenty-three folios of the case, and are signed by the attorneys who appeared for the parties in the action. I do not see that 1 can do otherwise than adhere to the order of the special term of the 19th of October, 1859, which has not been reversed or modified.

The defendants’ motion must be denied, with $10 costs of opposing the motion.  